United Kingdom House of Lords Decisions

Lord Chancellor—My Lords, in this appeal, subject to an observation as to the form of the interlocutor, I cannot entertain any doubt as to the true merits of the question at issue. It has not been suggested at the bar of your Lordships' House that it is not competent for two Parochial Boards to refer to arbitration any question as to which of them may be bound to maintain a pauper when a dispute arises between them. Here a dispute did arise, and a reference to arbitration was resolved upon in order to avoid expense. The minutes of the Parochial Board of the parish of Rathven show that the Board intended to refer the case to arbitration, and afterwards directed their inspector to carry out this intention. Ultimately the parties agreed to refer the matter to the Society of Inspectors, a body eminently qualified to consider and decide such a question. It has been argued to your Lordships that a reference cannot by the law of Scotland be made to a society consisting of fluctuating members. There has been, however, no authority produced to support any such proposition, and there is nothing in the law of England to sustain it. The reference in this case, when made, was conducted quite regularly, by written statements sent by each Parochial Board through its officers, for except through these officers there is no way in which a Board could act. It would lead to gross injustice if, after such a reference, and when the award has been made, one parish could turn round and repudiate it. In the present case the parties acted upon the award, and the appellant made payments under it. When the Board first intimated their intention to withdraw from it they did not put forward any want of authority to enter into the reference, or any irregularity during the reference, but they simply said that a case had since been decided by the Court of Session the other way. In short, what the Board said only came to this, that if they had in the first instance put their materials properly together they might have got a different decision. This is no ground, however, for opening up the dispute after it has been terminated. As regards the morality of the proceeding, there never was a clearer case of an endeavour by an after-thought to raise objections when it has become too late to do so. The appellant has obviously suggested to his Board the mode resorted to for upsetting the award of the society. There is, however, no ground for this course. My Lords, the only difficulty in your Lordships' order will be that the Court of Session have put their decision on the ground of homologation, and by a peculiar form have evaded recognising the validity of the award. It will be more consistent with the facts and the law that the interlocutor should be varied, and be based on the ground that the matter had been referred to arbitration, and that the award has been against the appellant. With that variation, my Lords, I should move that the interlocutor appealed against be affirmed, and, as the variation is merely one of form, it should make no difference as to costs, which will have to be paid by the appellant.

Lord Hatherley—My Lords, I am of the same opinion. I should be sorry to hold that a reference cannot be made according to the law of Scotland to a body whose members fluctuate, and such references are often made in England, of which one instance is the Benchers of the Inns of Court. There is no authority to show that the reference in the present case was not valid and the award binding.

Lords O'Hagan and Selborne also concurred.

On the question being put, the House affirmed the interlocutor appealed against, with a variation.