Alston & Orr v Allan
| Jurisdiction | Scotland |
| Judgment Date | 29 January 1910 |
| Docket Number | No. 48. |
| Date | 29 January 1910 |
| Court | Court of Session |
Ld. Johnston, Lord Justice-Clerk, Lord Ardwall, Lord Dundas.
ArbitrationDecree-ArbitralObjectionsAward of lump sumQuestions in Minute of Reference not separately answered by ArbiterClaims ejusdem generis.
Certain building operations having been carried out under a contract, and disputes having arisen regarding the quality of the work done, the amount due to the builder, and other questions of a similar nature, the parties referred the whole matter to an arbiter, and in the minute of reference stated, in the form of questions, the particular points which he is hereby requested and empowered to decide. The arbiter awarded a certain sum, but refused to answer the questions categorically, though from the terms of the note to his award it was apparent that he had considered all the points referred to him.
In an action for reduction of the award on the ground that by failing to give separate answers to the questions it did not exhaust the reference, held that, in the circumstances of the case, the arbiter was not bound to answer the questions categorically, but was entitled to dispose of the matter by finding a certain sum due by one party to the other, and award upheld.
Millar & Son v. Oliver & BoydSC, Nov. 10, 1903, 6 F. 77, distinguished.
ExpensesReservation of particular expenses followed by general decree for expensesPowers of auditor to disallow expenses found to be expenses in the causeAct of Sederunt, 15th July 1876General Regulations, Art. 5.
Article V. of the General Regulations as to the taxation of judicial accounts appended to the Act of Sederunt of 15th July 1876 enacts:Notwithstanding that a party shall be found entitled to expenses generally, yet if, on the taxation of the account, it shall appear that there is any particular part or branch of the litigation in which such party has proved unsuccessful, or that any part of the expense has been occasioned through his own fault, he shall not be allowed the expense of such parts or branches of the proceedings.
In an action of reduction, after a proof limited to preliminary defences, the Lord Ordinary, on 21st November 1907, repelled these defences, and found the pursuers entitled to the expenses of the proof, reserving the question of the expenses connected with the lodging of the defences. The Inner-House, on 1st July 1908, adhered, and found the expenses of the reclaiming note to be expenses in the cause. The Lord Ordinary ultimately, on 6th January 1909, decided the action in favour of the defenders, finding them entitled to expenses, and the Inner-House, on 22d December 1909, adhered, and found the defenders entitled to additional expenses, and remitted to the Auditor. Neither on 6th January nor 22d December 1909 was any motion made by the pursuers with regard to the reserved expenses.
The pursuers objected to the Auditor's report on the ground that he had allowed the defenders the expenses reserved on 21st November 1907.
The defenders objected to it on the ground that the Auditor had not allowed them the expenses found on 1st July 1908 to be expenses in the cause.
The Court approved the report, holding, (1) with regard to the reserved expenses, that the general finding for expenses in favour of the defenders in the interlocutor of 22d December 1909, without objection by the pursuers, covered and finally determined the question of the reserved expenses; and (2) with regard to the expenses declared to be expenses in the cause, that they were in the same position as ordinary expenses, and that accordingly it was competent and just for the Auditor to disallow them under Art. V. of Regulations in the Act of Sederunt of 15th July 1876.
Caledonian Railway Company v. ChisholmSC, 16 R. 622, followed.
On 3d October 1906, Messrs Alston & Orr, writers, Glasgow, raised this action against John Allan, wright, and John Herbertson, builder.
The action concluded for reduction of proposed findings, dated 5th July 1906, and of an interlocutor, dated 8th August 1906, both pronounced by John Herbertson as sole arbiter in a reference between Alston & Orr and John Allan under a minute of reference, dated 28th February 1906.
The following facts were not in dispute: John Allan contracted with the pursuers to execute for them the wright, ironmongery, and glazing work of certain cottages which they proposed to erect. When the building was finished, questions arose between the pursuers and Allan regarding the manner in which the contract had been performed, and the balance due thereunder, which, by minute of reference, dated 28th February 1906, the parties agreed to submit to John Herbertson as sole arbiter. Allan, the first party to the minute, claimed the sum of 640, 3s. 7d. in respect of work done under the contract. The pursuers, the second parties to the minute, maintained that the first party had failed to implement the contract, and claimed a deduction in respect of faulty and omitted work. They also claimed the sum of 21, being legal expenses in connection with the transfer of one of the cottages which the first party had agreed to purchase as part of the contract. After a narrative of the contract and claims, the minute of reference stated:Therefore we, the whole parties hereto, have agreed, and hereby agree, to refer to the decision of the said John Herbertson the whole questions now at issue between us as to the proper and complete implement of said contracts and the performance of the works embraced therein and the said other works and jobbings above mentioned. And the particular points which the said John Herbertson is hereby requested and empowered to decide are:
1st. Whether the first party had duly implemented his contract;
2d. Whether the first party had failed to do so, and, if so, in what respects, and what deductions should be made from the contract prices in consequence;
3d. Whether any, and if so what, sums were due to the first party for extra work;
4th. Whether the second parties were entitled to the deductions, or any of them, claimed by them, and to fix the amount;
5th. What is the total sum remaining due by us, the second parties, to me, the first party, in respect of the whole of the contracts above narrated; and
6th. Whether, and to what extent, interest should be allowed to the first party.
Herbertson accepted the reference by minute dated 25th April 1906, and after sundry procedure, issued the following note of proposed findings on 5th July 1906:The arbiter, having considered the minute of reference, together with the statements of claim by the claimants, and answers by the respondent, and the whole other productions in this reference, and having personally inspected the properties in question in presence of the parties, proposes to find that the claimants, Messrs Alston & Orr, are liable to make payment to the respondent, Mr John Allan, of the sum of 512, with interest at the rate of 5 per cent per annum from this date till paid. *
On 8th August 1906 the arbiter issued the following interlocutor:The arbiter having heard parties' agents on his proposed findings, and carefully considered their arguments, and the whole cause, adheres to the proposed findings: Finds Messrs Alston & Orr liable to make payment to Mr John Allan of the sum of five hundred and twelve pounds (512), with interest at the rate of 5 per centum per annum from 5th July 1906, till paid, and that the expenses of the reference, including arbiter's fee and clerk's account, be paid by the parties equally.
The pursuers averred:(Cond. 10) The said interlocutor is not an award in terms of the submission to the defender, Mr Herbertson. It does not exhaust the scope of the reference, and it is ultra vires and ultra fines compromissi. It was the duty of the arbiter, in issuing an award, to shew clearly the rights and liabilities of the parties, as specifically submitted to him in the minute of reference. Ex facie of the pretended award, it appears that the arbiter has not determined any of the first four questions so specifically submitted to him. In point of fact, it deals only with questions five and six, and thus it does not exhaust the questions submitted to the arbiter in said minute of reference. From said award it is impossible to discover which of the claims of the parties have been sustained, and to what extent, or whether the arbiter has considered some of these claims at all.
The pursuers also sought reduction of the award on other grounds, which are not reported.
The pursuers pleaded;(1) The said proposed findings and pretended interlocutor should be reduced, in respect that (a) they do not decide the questions submitted to the arbiter, Mr Herbertson; (b) they are ultra vires and ultra fines compromissi; (c) they do not exhaust the questions submitted to Mr Herbertson.
During the course of the action, Allan died, and his testamentary trustees were sisted as defenders.
Preliminary defences, with a plea to the effect that the action should have been by suspension and not reduction, were stated by the defender John Allan.
On 19th July 1907 the Lord Ordinary (Johnston) allowed the parties a proof in connection with this preliminary plea.
On 21st November 1907 he pronounced this interlocutor:Finds that the defender is barred by his actings from objecting to the pursuers proceeding by way of reduction instead of suspension: Finds the reduction competent, reserving as to its extent and effect: Repels the preliminary defences for the compearing defenders, and decerns: Allows the compearing defenders to satisfy the production in ten days: Finds the pursuers entitled to expenses of the proof allowed in connection with the said preliminary plea in law: Allows an account to be given in, and remits the same to the Auditor to tax and report: Reserves the question of expenses in connection with the lodging of the said preliminary defences to be discussed with the expenses on the merits: Grants leave to reclaim.
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