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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.

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,

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.

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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.

Lord Atkinson.—I concur.

Lord Shaw of Dunfermline.—It is only fair to the appellant to state that in the Court below

November 26,

1923.

HOUSE OF LORDS.

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REPORTS-1924, SCOTS LAW TIMES.

there was a clear and perfectly specific set of allegations which were brought to a focus in Black v. the first three pleas in law. These pleas John embodied the well-known grounds of reduction Williams of an award.

& Co.

1923.

(Wishaw) 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.

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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

serious charges upon their capacity and their integrity. Having been subjected to examination and cross-examination, something is elicited from such defenders which suggests 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.

The

So far for the first ground of appeal. 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.

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(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, and damages. The actions arose out of alleged infringement of a patent belonging to pursuers for improvements in incandescent electric lamps.

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

be.

In his judgment the cases dealing with

King &

Co.

Thomson

Houston

awards of expenses in consistorial cases do not OUTER
afford a complete analogy, as the principle under- HOUSE.
lying these awards is different (see Ovenstone, British
1920, 2 S.L.T. 83; R. v. R., 1923, S.L.T. 45). In Thomson-
an ordinary action where the successful party Houston
is found entitled to agent and client expenses Co. Ltd. v.
against an opponent or a third party, the Auditor Charles-
considers that the extent to which such charges worth
exceed the allowances in a party and party taxation Peebles
must be judged by the provisions of the General & Co.
Regulations, particularly No. 1 as to detailed charges British
for necessary business, and No. 3 as to such Thomson-
expenses being proper expenses of process. Even Houston
within these limits there is room for legitimate Co. Ltd. v.
difference of opinion and accordingly in this case the
pursuer maintains that he is entitled to charge his
opponent with (1) the expenses of his senior and British
junior counsel and agents visiting the pursuers'
works at Rugby, and (2) the expenses of his senior Co. Ltd. v.
and junior counsel and agents attending a consulta-
tion in London with pursuers' English counsel and looze
agents. The Auditor is of opinion that these charges Vennoot-
should be disallowed, and he has so dealt with them. schap
He takes the view that such charges are not proper Pope's
expenses of process. So far as the first item is con- Metaal-
cerned, this has been so decided in a party and party
taxation (Samuel v. Edinburgh and Glasgow Railway fabrik and
Co., 1852, 14 D. 790). This decision has been
approved in a recent case (Graham Hutchison and
Others v. Galloway Engineering Co. Ltd., 14th July December 5,
1923). The charge for consultation seems in an even
less favourable position. The fact that the award in
this case is agent and client-opponent paying-does
not in the Auditor's view make these charges any more
proper expenses of process in the sense of the Regula-
tions. It was suggested that it was necessary that
counsel should make a visit to the locus to enable
them to understand the skilled evidence to be led.

In point of fact the evidence did not require to be led,
the visit might be considered to be premature. But
as only the question of damages went to trial, so
further, such a reason would seem to apply equally
to the learned judge who tried the case, and from
information laid before the Auditor, it appears that
in patent cases in England an inspection by the
judge is frequently asked for. No visitation or
inspection was applied for by the parties in this
Had this been done and granted, the expenses
of the Table). Further, the Auditor does not think
would have formed expenses of process (Head 6 (1)

case.

that it was reasonable for an agent, who had not and
could not get the instructions of the party paying,
to incur such an expense in carrying on the litigation
without an order for inspection.

The pursuers thereupon lodged a note of
objections to the disallowance of certain items
in their accounts of expenses. In the third-
named 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, includ
ing 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

Naam

draad

lampen

Others.

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 Co. Ltd. v.

Naam

Pope's

Others.

1923.

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 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 Co. Ltd. v. 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 litigant's expenses 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 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.

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There are three heads under which most of

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.

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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, who is the owner of a motor car, invited the said William Cleghorn Paterson and his son, William Cleghorn Paterson (junior), to go with him that evening for a drive in said car. The party of three left Maybole in the car, driven by the defender, at about 5.15 P.M., and proceeded, after the defender had made certain outlying professional visits, to the village of Barr. On the return journey the car was, about 10.20 P.M., at a point about 1 miles from Maybole, and near to Kepernoch Bridge, a stone bridge over a stream. The road there takes a sharp double bend, turning first to the right and then at or near said bridge to the left. The defender approached the said bend at a high rate of speed. He rounded the first turn but, owing to the excessive speed at which he was travelling, he was unable to keep to the road and ran the car on to the grass verge on the right side thereof, and a distance of 60 feet or thereby along the verge, until it collided violently with the right-hand parapet of said bridge, rebounded, and was overturned. As a result of said accident the said William Cleghorn Paterson was thrown violently out on to the road and so severely injured that he died almost immediately afterwards. The defender's explanations in answer in so far as not coinciding herewith are denied. The brakes and steering-gear of the said car were examined by experts shortly after the accident and were found to be in good order. The defender is called upon to specify the alleged defect in the mechanism of the car upon which he founds.

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

OUTER HOUSE.

Paterson v. Gardiner.

1928.

there is a downhill gradient on the road as well as said double bend. It was the duty of the defender on approaching said bend to drive the car carefully and at such a moderate rate of speed and under such control as would enable him to pass round the bend in safety. These duties he culpably failed to perform. December 14, At the time of the accident he was driving in a careless and reckless manner and at a speed which in the circumstances was grossly excessive, and he had not said car under proper control. When approaching and rounding said bend the defender did not slacken his speed or apply his brakes but continued to drive at an excessive rate of speed. If the defender had performed his duties properly the accident would not have happened, and the said William Cleghorn Paterson would not have been killed.

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."

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