Rippin Group Ltd v Itp Interpipe Sa
| Jurisdiction | Scotland |
| Judgment Date | 02 February 1995 |
| Docket Number | No 35 |
| Date | 02 February 1995 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION
Lord Morton of Shuna
Practice—Diligence—Arrestment on dependence—Recall—Claim based on contract containing arbitration clause—Whether contingent claim—Whether arrestment on dependence competent
The pursuers raised an action of payment under a contract which contained an arbitration clause referring any dispute to arbitration before an arbitrator in Versailles. The cause originated in the sheriff court where a warrant to arrest on the dependence was obtained and certain sums in the hands of a third party were duly arrested. The cause was thereafter remitted to the Court of Session. The defenders then moved the Lord Ordinary (Lord Morton of Shuna) to recall the arrestments on the dependence, which he did on the basis that the claims put forward by the pursuers were contingent upon the arbiter determining in the arbitration that the sums were payable in terms of the contract between the parties. The pursuers thereafter reclaimed.
Held (rev Lord Morton of Shuna) (1) that, ex hypothesi of the pursuers' case, the sums claimed were due for payment immediately and there was nothing in the pleadings to suggest that there was any condition in the contract which had to be fulfilled before those sums became payable and the arbitration clause contained no condition which required to be fulfilled before any of those sums became payable; (2) that the fact that the parties agreed that the merits of the case should be determined by an arbiter did not mean that the claims made by the pursuer were contingent debts for, on the pursuers' pleadings, the sums claimed were outstanding and debts thus existed although a decree arbitral might be required to constitute the debt; and accordingly (3) that the Lord Ordinary had erred in holding that the use of arrestments had been incompetent; and reclaiming motionallowed.
Costain Building & Civil Engineering Ltd v Scottish Rugby Union plcSC 1993 SC 650 distinguished.
Rippin Group Limited brought an action in the sheriffdom of Tayside Central and Fife at Cupar against ITP Interpipe SA in respect of alleged sums due under a contract. In the sheriff court action the pursuers obtained warrant to arrest on the dependence and thereafter proceeded to arrest sums due to the defenders by Total Oil Marine plc. The cause was thereafter remitted to the Court of Session.
The cause called in the motion roll of the Lord Ordinary (Lord Morton of Shuna) on a motion by the defenders to recall the arrestments on the basis that there was an arbitration clause in the contract which made the pursuers' claim contingent.
Ad advising, on 25 March 1994, the Lord Ordinary recalled the arrestment and, of consent, sisted the cause for arbitration.
The pursuers reclaimed.
Cases referred to:
Costain Building & Civil Engineering Ltd v Scottish Rugby Union plcSC 1993 SC 650
Forbes v WhyteUNK (1890) 18 R 182
Hamlyn & Co v Talisker Distillery (1894) 21 R (HL) 21
Mendok B v v Cumberland Maritime Corporation 1989 SLT 192
Motordrift A/S v Trachem Co Ltd 1982 SLT 127
Stuart & Stuart v MacleodUNK (1891) 19 R 223
Svenska Petroleum A B v H O R Ltd 1986 SLT 513
Textbooks referred to:
Gloag on Contract (2nd edn) p 272
Graham Stewart, Diligence p 81
The cause called before the Second Division, comprising the Lord Justice-Clerk (Ross), Lord Murray and Lord Morison for a hearing.
At advising, on 2 February 1995, the opinion of the court was delivered by the Lord Justice-Clerk (Ross).
Opinion Of The Court—In this action which was raised in the sheriff court at Cupar and subsequently remitted to the Court of Session, the pursuers are seeking payment from the defenders in respect of sums said to be due under contract. In the sheriff court the pursuers obtained warrant to arrest on the dependence and thereafter proceeded to arrest sums due to the defenders by Total Oil Marine plc. On 25 March 1994, after the case had been remitted to the Court of Session and appointed to proceed in the Outer House, the Lord Ordinary, on the motion of the defenders, recalled the arrestments used on the dependence of the action. At the same time, of consent, he sisted the cause for arbitration...
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