United Kingdom House of Lords Decisions

Lord Chancellor—My Lords, I think for the decision of this case it is not necessary to enter into any detail. What has passed in the interlocutory observations between your Lordships and the learned counsel is sufficient to show that it is impossible that these interlocutors should be reversed. It seems to me that the case depends upon very short grounds indeed. Here is an award on the face of it perfectly good, dealing in express terms with the very subject which was submitted to the arbitrator in a written document which discloses without the least doubt what it was that was submitted to him. That written document submits to the arbitrator two questions—raising the questions in a very specific form, which were apparently the subjects in dispute in regard to a particular Act of Parliament.

My Lords, I am not going into particulars with respect to them, because it seems to me to be luce clarius that what was in dispute was decided by the arbitrator. Upon the face of the award the very thing submitted to him was decided by him. To my mind it is not susceptible of argument that the document discloses any ambiguity at all upon the face of it. In order to make it ambiguous we are asked to enter into the mind of the arbitrator, and to go upon various speculations as to what may have been intended by him, but upon the face of the award the very thing which was submitted to him has been decided. That is all I propose to say upon that matter, because it seems to me that although we have had it argued for some hours now it cannot be made more clear than the documents themselves make it.

My Lords, as to the other question which has been raised, assuming your Lordships affirm the interlocutors, all I wish to say is this—that if Mr Johnston has the right which he says he has, he has got it; but I will be no party to give him any additional right. The litigation such as it is has been conducted for a good many years. The award is ten years old, and I certainly do not consider that the condition of things is such that he ought to receive any encouragement from your Lordships' House for further litigation. The only thing we decide is the matter submitted to us. If that decision is nevertheless capable by another process of being made of no avail, I cannot help it, but I certainly would not by any reservation be a party to doing that which would first allow a cause to be brought to this House on appeal to be argued and decided in this House, and then give an opportunity of taking an additional proceeding afterwards which would render that judgment of no effect whatever.

I therefore move your Lordships that the interlocutors be affirmed and the appeal dismissed with costs.

Lord Watson—My Lords, I am of the same opinion. It does not certainly occur to me that there is any such ambiguity appearing upon the face of this award as to entitle the parties to a proof for the purpose of clearing up its meaning. The terms of the document are to my mind quite plain and unambiguous. The criticisms that have been made upon its findings by the learned counsel who have addressed us for the Highland Railway Company, have no doubt raised, or been calculated to raise, some doubts, whether upon full consideration a better arrangement could not have been made by the arbiter; but really they amounted to nothing else than an impeachment of his findings upon the merits. They certainly did not in the least degree suggest the existence of ambiguity.

Upon the other point, my Lords, I think your Lordships are bound to dispose of this case, and ought to take the course of disposing of it. We have heard some statements at the bar, but upon examining the record I can find no statement whatever made on the part of the defenders which could raise a relevant case for setting aside or impeaching the award. They may have such a case, and it may be competent for them to state it. If, notwithstanding our decision in the present suit, they have a right, they may state it. I shall only say that I do not wish to convey a suggestion that in my opinion such a right exists.

Lord Herschell—My Lords, I am of the same opinion.

Lord Morris—My Lords, I concur.

Lord Shand—My Lords, it appears to me, as it does to your Lordships, that the agreement of reference and the award are quite unambiguous. The contract of reference refers to the arbitrator the question whether the proviso to section 82 of the Highland Railway Act of 1865 applies to the traffic exchanged under the Act of 1884. That word “traffic” includes in my opinion all traffic. The contention of the appellants is that it does not include passenger traffic, and that it does not include competitive traffic. I can see no foundation for such a contention. According to the plain meaning of the word “traffic,” used without qualification in the contract of reference

Page: 814↓