Scottish Court of Session Decisions

Lord President— [After narrating the foots of the case ut supra]—Now, before we get to the merits there was a preliminary question raised which practically goes to competency. That question may be stated thus—the original appellant, Milne, holds that, inasmuch as the parties had gone before the arbiter, and that a claim had been lodged on the one side and a counterclaim on the other, and the arbiter had been allowed to apply his mind to these claims with the view of coming to a decision on the matter, it was too late to raise the question of whether there was any matter to be adjudicated upon, or in legal language too late to raise a prejudicial plea, and the argument of counsel was that the only competent way to raise this question was by an action of interdict. I have not been able to see that there is actually any incompetency here. If a man who can show prima facie ground for saying he is a tenant—I mean not a mere man in the street—proceeds to make a claim against his landlord for compensation, which the landlord does not admit, and then the tenant goes to the Board of Agriculture and says “I want you to appoint an arbiter,” I think it is clear what the Board of Agriculture will always do, and rightly do, as they did in this case—they will refuse to constitute themselves a legal tribunal to find if this is a proper claim or not, but will appoint a gentleman to act as arbiter, and leave the parties to work out the question in the arbitration. Now, I am not doubtful that as a matter of competency the next step might have been taken by way of interdict, because the case was of a class that raised the point clearly and plainly before any proceedings had been taken, and so, no doubt, the arbiter could have been interdicted from proceeding, just as in many cases arbiters have been interdicted from proceeding under Lands Clauses References. But I am far from thinking that that is the only procedure competent, or that in not taking that procedure the party must be held to have waived all other remedy. But I hesitate from laying down any general rule, because I think that the matter must really depend on the circumstances of each case, and I cannot bring myself to think that one is in a position to see so clearly ab ante all the different classes of circumstances that might arise as to be able to lay down a general rule and say that in such and such a case you ought to raise an interdict and in such and such a case you

ought not. But you are well aware there are many cases in the books on what is certainly an analogous subject, namely references under the Lands Clauses Act, as to stopping arbitration proceedings where it is said an arbiter is proposing to exceed his jurisdiction or for other reasons; and I donot think I am going too far when I say that the tendency of judicial opinion has been rather against raising the matter ab ante by interdict, and rather in favour of considering the question after it has been before the arbiter himself. At the same time I am not wishing to say for an instant that interdict might not quite well be used, yet I hesitate to go so far as the Sheriff-Substitute in his note, where he says that clearly interdict was the right method. I think the matter would have been equally well and properly done had they gone before the arbiter, and then on the pleading before the arbiter put in a prejudicial plea. Now, that was not done here, and I think that it is a pity it was not done. After all, every arbiter has to settle his own jurisdiction, and decide that he has jurisdiction before proceeding to consider the matters referred to him, though, of course, his settling his jurisdiction is not final, because it can always be reviewed by the Court if wrong. But still he is bound to take the first step, and if he comes to a negative conclusion he would be bound to say so and refuse to go on. But though this was possibly the best course, as a matter of strict pleading one must remember there is no absolutely strict rule of pleading in a reference to an arbiter. Though the general practice known as making up records obtains before an arbiter, yet that is merely a matter of convenience; and a good illustration of how much it is a matter of convenience may be taken from this fact—that anyone who has had, as I happen to have had, acquaintance with English arbitrations, knows that the forms there are quite different from the forms we use here. Accordingly, although this arbiter was not asked to give a decision on this plea, I cannot think, as a matter of competency, that it can be held to be now too late to raise it; because to hold otherwise would be to hold that if a person in an arbitration does not put in a prejudicial plea in the initial stages he must be held to have waived it altogether. To hold that would be to hold that rules applied to arbitration proceedings which do not apply in ordinary actions, for everyone is well aware that if such a thing happened in Court, although there might be a salutary award of exenses, yet even at the last moment of the day before the actual judgment has gone forth there is always time to put in a plea, though that plea might go to render nugatory the whole proceedings that had taken place. I know no better instance than what happened in this Court very recently. I am alluding to the Clippens Oil Company against the Edinburgh and, District Water Trust (July 6, 1905, 42 S.L.R. 698), in which case, after there had been judgment of the Lord Ordinary following on a proof extending for many days, a plea was allowed to be put in based on the Public Authorities Protection Act, which plea, if good, would have obviated the necessity for any inquiry into the case at all. Accordingly, as undoubtedly this plea did get into the arbitration—because here it is—I cannot think there is any incompetency in considering it, although I quite think that, as bearing on the expenses of the arbitration, the tardy production of the plea might be an element for consideration.

[His Lordship then proceeded to consider the merits, and stated his reasons for holding that the questions fell to be answered in the negative.]

Lord M'larenconcurred.

Lord Pearson—I agree in the judgment proposed. In the first place, I have no doubt as to the competency of now taking up and disposing of the preliminary questions which were added to the special case by the Sheriff. These questions were timeously raised by the landlord in his original representation to the Board of Agriculture. They are questions which might have been competently stated by him for the determination of the arbiter at the outset of the arbitration. His determination upon them would not have been final. But he could have decided them in the first instance, and as we are now in a proceeding within the arbitration, upon a case stated by the arbiter, I hold that these questions are competently before us for our decision.

[His Lordship then considered the merits, in which he arrived at the same conclusions as the Lord President.]

Lord Kinnear was absent.