Mitchell-Gill v Buchan
| Jurisdiction | Scotland |
| Judgment Date | 04 February 1921 |
| Docket Number | No. 40. |
| Date | 04 February 1921 |
| Court | Court of Session |
Lord President (Clyde), Lord Mackenzie, Lord Skerrington, Lord Cullen.
ArbitrationLandlord and TenantStatutory arbitrationCase stated by arbiter on question of lawDuty of arbiter to apply opinion of Sheriff or decision of CourtAgricultural Holdings (Scotland) Act, 1908 (8 Edw. VII. cap. 64), sec. 11 (3), and Second Schedule, Rule 9.
Held that an arbiter who has stated a case for the opinion of the Sheriff on a question of law arising in the course of an arbitration under the Agricultural Holdings (Scotland) Act, 1908, is bound to apply the opinion of the Sheriff or the decision of the Court of Session on appeal, as the case may be, and that, if he disregards the law so ascertained, he is guilty of misconduct.
On 3rd May 1920 a case for the opinion of the Sheriff of Aberdeen, Kincardine, and Banff, under the Agricultural Holdings (Scotland) Act, 1908,* was stated by James Ebenezer Esslemont, Little Barras, Stonehaven, arbiter in a reference under the Act between William Alfred Buchan, Westerton, Blairs, and Andrew John Mitchell-Gill of Savoch, Aberdeenshire.
The stated case set forth:
This is an arbitration under the Agricultural Holdings (Scotland) Act, 1908, between the said William Alfred Buchan, the outgoing tenant, and the said Andrew John Mitchell-Gill, the landlord of the holding of Savoch, in the county of Aberdeen.
Among the claims falling to be disposed of by the arbiter, who was appointed by the Board of Agriculture by minute dated 16th October 1917, is a claim by the tenant for 745 as compensation under section 10 of the Act for loss or expense alleged to have been incurred by him on his quitting the holding at Whitsunday 1917, in consequence of the landlord having, without good and sufficient cause and for reasons inconsistent with good estate management, terminated the tenancy by notice to quit.
The landlord disputed the relevancy and competency of the said claim, and it having been agreed that findings on the relevancy and competency of the claim should be issued before dealing with it on its merits, the landlord lodged answers to the tenant's claim, to which the tenant lodged replies and the landlord thereafter additional answers.
On 12th March 1918 the arbiter, after consideration of the statements contained in the said claim, answers, replies, and additional answers, and in a joint minute of admissions lodged by parties with a view to obviating the leading of evidence, issued proposed findings, indicating his opinion that the landlord had terminated the tenancy without good and sufficient cause and for reasons inconsistent with good estate management, and proposing to repel the landlord's objections to the relevancy and the competency of the claim.
Against this proposed finding the landlord lodged representations in which, inter alia, he objected to the proposed findings, in respect that there is no evidence upon which he (the arbiter) can competently find that the landlord terminated the tenancy without good and sufficient cause and for reasons inconsistent with good estate management, and in which he craved the arbiter to state a case for the opinion of the Sheriff in accordance with the provisions of rule 9 of the Second Schedule to the Act.
As finally adjusted, the question of law proposed in the stated case for the opinion of the Sheriff was whether on the facts admitted or proved it can competently be found that the landlord terminated the tenancy without good and sufficient cause, and for reasons inconsistent with good estate management. This question the Sheriff-substitute (Young) on 8th June 1918 answered in the affirmative.
On an appeal by the landlord to the First Division of the Court of Session under section 11 (3) of the Act, the following interlocutor was on 10th January 1919 pronounced by said Division, viz:The Lords having considered the appeal along with the stated case, No. 5 of process, and heard counsel for the parties, recall simpliciter the interlocutor of the Sheriff-substitute, dated 8th June 1918; answer the question of law in the case in the negative; and remit to the arbiter to proceed: Find the appellant entitled to expenses both in this Court and in the Sheriff Court, and remit the account thereof to the Auditor to tax and to report.
Following upon this interlocutor the arbiter, on 22nd August 1919, heard parties as to its effect on the subsequent procedure in the arbitration, and in particular as to whether the arbiter was bound to find that the landlord had not terminated the tenancy without good and sufficient cause, and for reasons inconsistent with good estate management, and to dismiss the claim, the landlord contending that the arbiter is, and the tenant that he is not, bound by said interlocutor. On 22nd September 1919 the arbiter, having carefully considered said interlocutor, issued an interlocutor by which, for the reasons stated in the note appended thereto,* he proposed
of new to repel the landlord's objections to the relevancy and competency of the tenant's claim, and to allow to the parties a proof of their averments in respect of said claim, to be led on a date to be afterwards fixed.
On 24th October 1919 the landlord presented to the Sheriff an
application craving the Court to direct the arbiter to state a special case for the opinion of the Sheriff upon the questions of law hereinafter submitted, and on 27th March 1920 the Sheriff-substitute (Laing) pronounced an interlocutor directing him to do so.
The arbiter accordingly submits the following questions of law for the opinion of the Court, videlicet:
(1) Is the arbiter bound to give effect to the said interlocutor of the First Division of the Court of Session by finding that the landlord did not terminate the tenancy without good and sufficient cause, and for reasons inconsistent with good estate management, and to refuse the tenant's claim in so far as relating to compensation for unreasonable disturbance?
(2) Is the arbiter in spite of said interlocutor entitled to entertain and proceed with the assessment of said claim?
On 24th November 1920 the Sheriff-substitute (Laing) answered the first question of law in the negative and the second question of law in the affirmative, and remitted to the arbiter to proceed. The landlord appealed to the Court of Session, and the case was heard before the First Division on 21st and 25th January 1921.
Argued for the appellant;The arbiter under the Agricultural Holdings (Scotland) Act, 1908, was not conducting a common law arbitration, but was acting under a statute which provided a method for ascertaining the law, and so far took part of the proceedings out of his hands. He was compelled to follow the statutory procedure, which could be invoked by either party to the reference requiring him to state a case for the opinion of the Sheriff. The opinion of the Sheriff, or the decision of the Court of Session on appeal, was authoritative though not executive, and the arbiter was not entitled to render the procedure futile by refusing to apply the law as authoritatively ascertained.1 He was just as much bound to apply the opinion or decision obtained on the stated case as a Division of the Court was bound to give effect to the opinions of consulted Judges, where a case had been sent to a Court of Seven Judges under section 60 of the Court of Session Act, 1868.2 The arbiter was not entitled to prefer his own view of the law to the opinion given by a superior tribunal; even in the House of Lords the opinions of consulted Judges were given the greatest weight.3 The principle of consultative jurisdiction possessed by the English Courts under the English Arbitration Act, 1889,4 was not applicable to Scottish arbitrations. The opinions given by the Courts in such proceedings were not judgments, and were therefore not appealable, but, on the other hand, if a wrong opinion thus obtained was adopted by the arbitrator and appeared on the face of his award, the award might be reviewed by a higher tribunal.5 An English arbitrator,
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...for his guidance. He cannot recall his judgment, and there is no provision which allows us to recall it." 43 In Mitchell-Gill v. Buchan 1921 S.C. 390 it was held that an arbiter who had stated a case for the opinion of the court under the Agricultural Holdings (Scotland) Act 1908 was bound ......
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...Agricultural Holdings Acts is conclusive and binding on the arbiters appointed by the Board of Agriculturesee Mitchell-Gill v. Buchan, 1921 S. C. 390. But I do not think I am warranted in attributing to the provision in question any purpose beyond that of expressly excluding a further appea......