Cooper & Co. v. Jessop Brothers [1906] ScotLR 43_517 (20 March 1906)

Cooper & Co. v. Jessop Brothers [1906] ScotLR 43_517 (20 March 1906)

The Lord Ordinary exceeded his jurisdiction by proceeding to determine, in a summary petition under the Arbitration (Scotland) Act 1894, substantial and disputed questions as to the existence and scope of the arbitration agreement and the jurisdiction of the Scottish courts, particularly where the respondents were not subject to Scottish jurisdiction absent prorogation. The proper course was to sist the process until these issues were resolved in a competent court. The reclaiming note was competent as the Lord Ordinary acted judicially.

Citation
[1906] ScotLR 43_517
Parties
Petitioner: Cooper & Company; Respondent: Jessop Brothers
Jurisdiction
Scotland
Judgment Date
20 March 1906
Procedural Posture
Petition to Appoint Arbiter Under Arbitration (scotland) Act 1894 / Reclaiming Note (appeal) Against Lord Ordinary's Interlocutor
Outcome
Interlocutor of the Lord Ordinary recalled; process sisted (stayed) until determination of disputed issues in a competent court.
Legal Topics
Competency of Proceedings Under Arbitration (scotland) Act 1894, Jurisdiction Over Foreign Parties, Interpretation of Arbitration Clauses, Summary Procedure Vs. Ordinary Action
Arbitration Civil Procedure Jurisdiction Competency of Proceedings Under Arbitration (scotland) Act 1894 Jurisdiction Over Foreign Parties Interpretation of Arbitration Clauses Summary Procedure Vs. Ordinary Action

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 16 Party arguments 2
Sign in to unlock

Parties

Cooper & Company

Petitioner

Jessop Brothers

Respondent

Procedural Posture

Petition to Appoint Arbiter Under Arbitration (scotland) Act 1894 / Reclaiming Note (appeal) Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the Lord Ordinary had jurisdiction to entertain the petition to appoint an arbiter under the Arbitration (Scotland) Act 1894 where the existence and scope of the arbitration agreement were disputed and the respondents were not resident or carrying on business in Scotland.
  2. 2 Whether the reclaiming note (appeal) was competent against the Lord Ordinary's interlocutor allowing proof and repelling objections without proof.
  3. 3 Whether the arbitration clause 'any dispute arising from this contract to be settled by arbitration here in the usual way' was sufficiently certain and formed part of the contract.

Ratio Decidendi

The Lord Ordinary exceeded his jurisdiction by proceeding to determine, in a summary petition under the Arbitration (Scotland) Act 1894, substantial and disputed questions as to the existence and scope of the arbitration agreement and the jurisdiction of the Scottish courts, particularly where the respondents were not subject to Scottish jurisdiction absent prorogation. The proper course was to sist the process until these issues were resolved in a competent court. The reclaiming note was competent as the Lord Ordinary acted judicially.

Court Disposition

Interlocutor of the Lord Ordinary recalled; process sisted (stayed) until determination of disputed issues in a competent court.

Orders

  • Recall of Lord Ordinary's interlocutor repelling objections and allowing proof.
  • Remit to Lord Ordinary to sist process pending determination of contract and arbitration clause issues in appropriate proceedings.