REPORTS-1924, SCOTS LAW TIMES. the work executed according to the custom of the trade? I say it is not. Rough casting as it is known to the trade in this district, and as it is specified by architects and measurers, consists of three coats," and then he finds that in this particular case only two coats had been used, and, accordingly, he says that a certain deduction is to be made from the price. Now this action has been brought to set aside that award. As your Lordships are aware, it is very necessary that the objections to awards should be kept within very closely defined limits, and the first thing that is necessary in the condescendence of an action for setting aside an award is that there should be a precise specification of the grounds of challenge, and unless there is such precise specification no proof ought to be allowed. I really cannot look on the record in this case and the interlocutor that immediately follows thereon with any pride. It has always been one of the great boasts of the process in Scotland that parties are tied to the record. Here the record is a very vague statement. It certainly had a statement that was precise enough a statement of actual corruption on the part of the arbiter as evinced by certain words spoken by him but that statement has disappeared. Now I am not throwing any doubt upon the point that if there is precise specification that the arbiter has gone ultra fines compromissi by deciding a question different from that submitted to him, it is possible to go to proof and it is quite competent to examine the arbiter to find out what he has done. The Canadian case quoted [Fraser v. City of Fraserville, [1917] A.C. 187] is a very good instance of that; where, the reference to the arbiter having been to find the value of certain property compulsorily taken to the man who had to part with it, he decided no such question, but decided what was the value to the man who took it, and the award (it was held) could not stand. But here on the point which has really been the principal point argued, it is admitted that there is no record at all, and no amendment was made. 59 & Co. yet, if a person comes into Court with a set of HOUSE allegations all of which fail, and then finally, OF LORDS. by chance, gets out of the arbiter something Black v. that enables him to make a case which he had John not up to that moment made, it may be that Williams he should be allowed to go on with the case, (Wishaw) and I think it is in accordance with our Scottish Ltd. procedure that he ought to be allowed to go on with it; but most indubitably he ought to have paid the whole of the expenses up to that point. Now, we come to what the point is here. It is said here that the arbiter did not really direct himself to the true question, and the ground upon which that is put is this, that whereas what he had to enquire into was what was the custom of the trade, he had directed his attention entirely to what was usually put by architects and surveyors into specifications. It must be remembered that this arbiter was a practical plasterer, and I agree with what fell from my noble and learned friend, Lord Shaw, in the course of the discussion, that probably he need not have asked for any evidence at all; but, if he was going to hear evidence, I cannot think that it was anything but a most sensible procedure to say, "I will find out and consider what is the custom of the trade by considering what are the usual stipulations that are put in by those who deal with this kind of trade, namely, architects and surveyors." Therefore, I think that upon the merits the complaint entirely fails. There was only one other matter that was made a ground of attack. It was said that a witness was examined outwith the presence of one of the parties. There are many casesthe leading case is the case of Mitchell-where it has been held that you must not examine witnesses on one side and not on the other, and that you must not examine witnesses without the parties being properly represented. But, after all, those cases, one and all of them, are only illustrations of the general principle that the procedure of the arbiter must not violate the principles of essential justice. How can it be said in this instance that the principles of essential justice have been violated ? The Lord President has given the circumstances; I need not recall them; but, as a matter of fact, upon this one question whether one material was substituted with the consent of the employers for another the arbiter decided in favour of the person who is now challenging the award. I think, therefore, that this matter fails, and I move your Lordships that the appeal be dismissed with costs. The learned counsel quoted the case of Davidson v. Logan, which was decided in 1908 S.C. 350, which I quite admit is very like this case in that particular, but I cannot think that the learned judges in that case did quite right. I am not saying that they did wrong in deciding the question as they did, but, in the matter of amending the record, they found that it was unnecessary to amend it. I should have thought it was absolutely necessary to amend it if for no other reason than this, in order to deal with the expenses in the case. I am quite clear that however much it may be said that the matter is not too late at the end of the day, to the appellant to state that in the Court below Lord Atkinson. - I concur. Lord Shaw of Dunfermline. It is only fair November 26, 1923. 60 REPORTS-1924, SCOTS LAW TIMES. HOUSE there was a clear and perfectly specific set of serious charges upon their capacity and their OF LORDS. allegations which were brought to a focus in integrity. Having been subjected to examinaBlack v. the first three pleas in law. These pleas tion and cross - examination, something is John embodied the well-known grounds of reduction elicited from such defenders which suggests Williams of an award. & Co. (Wishaw) 1923. One has to bear in mind that the arbitrator Ltd. here in a dispute over a plasterer's contract November 26, was the most practical of all men, namely, he was a plasterer himself. What is the duty of a practical man in view of the points submitted to him under the minute of reference? The duty resting on such a man is brought out clearly by Lord Halsbury, then Lord Chancellor, in the case of Paterson & Son Ltd. v. Glasgow Corporation (1901, 3 F. (H.L.) 38). His Lordship said: "The arbitrator proceeded, I think, substantially in the way that it was intended he should proceed, applying his technical knowledge to technical matters which were within his knowledge, and applying his local knowledge to the particular place where this work was to be done." This practical arbitrator, vested with that local and practical knowledge to which I have referred, had before him a very simple minute of agreement and reference. He was to settle the difference between the parties, "regarding the rough casting referred to, and particularly whether the rough casting referred to has been executed by the first party in accordance with the foresaid offer, and in a manner recognised by and according to the custom of the trade and further whether the said work had been executed in a satisfactory and tradesmanlike manner." All these things are matters eminently within his own local and practical knowledge. It was entirely for him to say whether anything further was required in the shape of evidence, to satisfy his own mind. It was in these circumstances that I made the observation that this man was excessively cautious in having allowed any proof at all. I think he was. Upon the record the arbitrator is charged (1) with having been corrupt, (2) with having gone beyond the boundaries of the submission, and (3) with having based his award on a question not in issue between the parties. A proof was allowed of these averments. The proof having been led in the Court of Session, and when this arbitrator was in the witness-box a certain other fact was elicited not on record and not pleaded to, and on that the Lord Ordinary thought fit to give judgment, a judgment which has been reversed. I am of opinion that arbitrators or indeed any defenders in Scotland ought not to be put into that situation. They are put into the witness-box because of averments and pleas which are well-known grounds of reduction, and, as in this case of an arbitrator, may involve a new cause of action altogether, or a different foundation for the action. In such circumstances my view of the law (and I gather it is the view of your Lordships) is that, when that situation arises, the new front thus disclosed is a front which cannot be presented to the Court except upon averments and pleas properly inserted in the record, and upon strict and it may be severe conditions as to expenses. Fortunately, the terms of arbitration here are wide enough to cover all that was done; no harm was done that I can see by the procedure adopted by the arbiter. So far for the first ground of appeal. The second ground is this. The appellant on one point of the case obtained the award of the arbitrator in his favour. But he is not satisfied. He says, " I am a legal purist. My grievance is that I got my favour accorded to me by ways which were not in accordance with my ideas of legal purism." No court of justice can entertain arguments of that kind; it would upset the whole foundation of legal remedy. There is nothing to remedy on the concession of the argument. Had it not been for the admirable address of Mr Wark, I should have said that the case was too clear for argument. Reverting to the point of procedure, I desire to say that I do not commit myself to the doctrine laid down in Davidson v. Logan. I question whether it can be squared with that now laid down in this House. I do not commit myself further than to repeat those views as to correct pleading which your Lordship has announced from the woolsack. I wish to add respectfully that I do not think it would be possible to improve upon the patient and accurate summation of the legal position of this case by the Lord President of the Court of Session. Lord Phillimore. - I concur with the motion which is proposed by my Lord on the woolsack, and with the observations which have fallen from the noble and learned Lords who have addressed your Lordships' House. Lord Blanesburgh.-I concur. Counsel for Appellant, Wark, K.C., M. J. King; Agents, Dove, Lockhart & Smart, S.S.C.; Borland, King & Shaw, Glasgow; Ince, Colt, Ince & Roscoe, London. Counsel for Respondents, MacRobert, K.C., Black; Agents, Macpherson & Mackay, W.S.; Wm. B. Thomson & M'Lean, Wishaw; John Kennedy & Co., Westminster. (Reported ante, 1923, S.L.T. 358.) The British Thomson-Houston Co. Ltd. brought three separate actions against (1) Charlesworth Peebles & Co., (2) King & Co., and (3) Naamlooze Vennootschap Pope's Metaaldraadlampenfabrik and Charlesworth Peebles & Co., concluding for interdict, delivery, Houston awards of expenses in consistorial cases do not OUTER as only the question of damages went to trial, so and damages. The actions arose out of alleged the visit might be considered to be premature. But After the record had been closed and a proof had been fixed, all the defenders lodged a minute admitting infringement, and proof was restricted to the question of damages. Proof having been led, the Lord Ordinary decerned against the defenders in each case for payment to the pursuers of a lump sum and found defenders liable to pursuers in expenses, and remitted to the Auditor to tax the accounts thereof as between agent and client. The Auditor taxed the account of expenses, and he appended the following note to his report: The remit is to tax as between agent and client. As the opponent is paying, this means by authority and in practice the intermediate scale. The general principle of taxation in such a case is not in doubt, but the margin for differences of opinion in its application in each particular case is so wide that the Auditor takes this opportunity of submitting his views for approval or correction as the case may In his judgment the cases dealing with be. case. to the learned judge who tried the case, and from .. The pursuers thereupon lodged a note of objections to the disallowance of certain items in their accounts of expenses. In the thirdnamed action (with reference to which the Lord Ordinary's opinion (infra) was delivered) the items to the disallowance of which objection was taken included (1) the expenses of a visit of pursuers' counsel and agent to Rugby, including fees, to inspect their works; (2) the expenses of a consultation of pursuers' counsel with English counsel in London. On 5th December 1923 the Lord Ordinary draad 1923. OUTER pronounced an interlocutor sustaining the purHOUSE. suers' objections quoad the sum of £55, 19s. 4d. British and quoad ultra repelling them. ThomsonHouston Charles Houston Lord Blackburn. - In these three actions of Co. Ltd. v. interdict and damages for infringement of the worth same patent, in which defences were lodged Peebles challenging the validity of the patents, the & Co. records were closed on 18th March 1922 and British proof fixed for 4th July. On 29th May 1922 Thomson- the defenders lodged a minute admitting the Co. Ltd. v. validity and the infringement, and the proof King & was restricted to the question of damages. Co. Interdict was granted on 1st June 1922 in British terms of the minute, and after the proof as Thomson-to the amount of damage the pursuers were Houston found entitled to expenses as between agent Naam- and client on 12th July 1922. These have now looze been taxed by the Auditor, and objections are Vennoot- taken by the pursuers to various charges which schap the Auditor has disallowed. The Auditor has Metaal- appended a note to his report dealing specifically draad- with the pursuers' objections, and, inter alia, lampen- he submits for the consideration of the Court fabrik and the principle he follows in taxing a successful Others. litigant's expenses Co. Ltd. v. Pope's 1923. 66 66 دو 66 as between agent and December 5, client. In my opinion the course followed by the Auditor is entirely in accordance with the provisions of the Regulations attached to the Table of Fees. Regulation 3 provides, subject to certain provisos immaterial to this question, that the expenses to be charged against an opposite party shall be limited to the proper expenses of process without any allowance (beyond that indicated in the Table) for preliminary investigations. This definition is irrespective of whether the taxation is as between party and party" or agent and client," and in neither case, in my opinion, can any expenses be charged except expenses of process, with such allowances for preliminary investigations as are authorised by the Table. Regulation 1, however, provides that whereas in taxation as between party and party" general charges of limited amount are authorised by the Table for certain steps in a case, it shall be in the option of the agent as against the client to substitute for these general fees, fees for all necessary business in connection with the case, the rates of charge being regulated by the Table. In my opinion this does not extend the expenses which may be charged against an opposite party, even if they are to be taxed as between agent and client, beyond the expenses allowed in Regulation 3, viz. expenses of process and such allowances for preliminary investigations as are authorised by the Table. But the charges for expenses allowed as between agent and client are to be calculated on the basis allowed to an agent as against his client. There are three heads under which most of 66 the charges which the Auditor disallowed and which the pursuers contend should be allowed, fall : (1) A series of charges which run from 25th March to 25th April and amount to over £250, which were incurred in connection with a visit paid by pursuers' counsel to the pursuers' works at Rugby, in order that they might be instructed in the intricacies of the manufacture of the electric lamps which were under consideration. I have no doubt whatever of the utility of such a visit in a case of this sort, but it certainly is not an expense of process nor is such a visit a preliminary investigation for the cost of which any allowance is indicated in the Table of Fees. Accordingly, in my opinion, the Auditor was justified in disallowing all the fees connected with the visit. (2) These charges, which amount to £55, 19s. 4d. and have been disallowed, are in connection with a consultation in London, and are entered under dates 15th, 18th, and 19th May 1922. Prior to the raising of the present actions in Scotland a similar action had been raised by the pursuers in England against the Corona Lamp Works Ltd., which was finally disposed of in the pursuers' favour by a decision of the House of Lords. In the defences in these actions it was averred by the defenders that the objections taken by them to the validity of the patent had not been insisted on or supported by evidence in the English action. In these circumstances it appears to me that a consultation with the English counsel engaged in the Corona case was desirable and necessary. This was held in London to suit the convenience of the Dean of Faculty, who happened to be there at the time, and he was attended by the pursuers' agent with a view to taking notes for precognition. I have seen the Auditor as to these charges and understand that his reason for disallowing them was that the consultation had been held in London. Had it been held in Edinburgh he agreed that the charge for a consultation would have been legitimate and would have included the expenses of English counsel in attending it. Under these circumstances the items as charged should, in my opinion, be allowed, and I shall accordingly sustain the pursuers' objections under this head. ... The result is that I allow an addition of £55, 19s. 4d. to the taxed amount. Counsel for Pursuers, Normand; Agents, Webster, Will & Co., W.S.-Counsel for Defenders, Burn-Murdoch; Agents, Davidson & Syme, W.S. J. M'G. Mrs Mary Dawson or Paterson, widow of William Cleghorn Paterson, hotel-keeper, Maybole, brought an action against Walter Gardiner, Woodside, Maybole, in which she concluded for damages, for herself and her pupil children, in respect of the death of her husband as the result of an accident while driving as a guest in the defender's motor-car. The pursuers averred, inter alia : COND. 2. On said 3rd July 1923 the defender OUTER Paterson v. 1923. there is a downhill gradient on the road as well as The pursuers pleaded, inter alia : "1. The death of the said William Cleghorn Paterson having been caused by the fault of the defender, he is liable to the pursuers in damages and solatium therefor." The defender pleaded, inter alia : "1. The pursuers' averments being irrelevant to support the conclusions of the summons, the action should be dismissed. "3. The said William Cleghorn Paterson having been a guest of the defender, and the defender not having failed in his duty to him, is not liable in solatium to the pursuers in respect of the death of the said William Cleghorn Paterson." who is the owner of a motor car, invited the said about 10.20 P.M., at a point about 11⁄2 miles from COND. 3. The said accident and the death of the said William Cleghorn Paterson were due to the gross fault and negligence of the defender. The defender was experienced in driving said car and was well acquainted with the road, and the said William Cleghorn Paterson relied, as he was entitled to do, on the defender's skill and knowledge to carry him safely. At the place where the accident happened The pursuers proposed an issue for the trial The authorities cited in the debate upon the adjustment of the issue are sufficiently referred to in the Lord Ordinary's opinion (infra). Avizandum, 11th December 1923. On 14th December 1923 the Lord Ordinary (Ashmore) repelled the defender's first plea in law and approved of the issue proposed by the pursuers for the trial of the cause. Lord Ashmore. In this case the pursuer is suing, for herself and her pupil children, for damages for the death of her husband. He met his death as the result of an accident when travelling, on the invitation of the |