Johannesburg Municipal Council v. D. Stewart & Co. (1902) Ltd and Others [1909] UKHL 20 (06 July 1909)

Johannesburg Municipal Council v. D. Stewart & Co. (1902) Ltd and Others [1909] UKHL 20 (06 July 1909)

The House of Lords held that the question of whether the dispute fell within the arbitration clauses was a mixed question of fact and law, and should have gone to proof in the Scottish Courts. The Court of Session was not bound to refer the matter to English Courts or to arbitration unless it found it suitable. The dismissal of the guarantor and recall of arrestments was erroneous, as under English law the surety could be pursued without prior establishment of the principal's liability. The order of the Court of Session was set aside and the case remitted for proof.

Citation
[1909] UKHL 20
Parties
Pursuer/appellant: Johannesburg Municipal Council; Defender/respondent: D. Stewart & Co. (1902) Ltd and Others; Guarantor/defender: William Beardmore
Jurisdiction
United Kingdom
Judgment Date
06 July 1909
Procedural Posture
Civil Appeal / Appeal From Court of Session (scotland) to House of Lords
Outcome
Order of the Court of Session set aside; case remitted for proof; prayer for recall of arrestments refused; expenses to appellants from closing of the record.
Legal Topics
Arbitration Clauses, Jurisdiction, Repudiation of Contract, Guarantee Liability, Arrestment on Dependence
Contract Law Arbitration Private International Law Suretyship Arbitration Clauses Jurisdiction Repudiation of Contract Guarantee Liability +1 more

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 2 Party arguments 2
Sign in to unlock

Parties

Johannesburg Municipal Council

Pursuer/appellant

D. Stewart & Co. (1902) Ltd and Others

Defender/respondent

William Beardmore

Guarantor/defender

Procedural Posture

Civil Appeal / Appeal From Court of Session (scotland) to House of Lords

Legal Issues

  1. 1 Whether the dispute falls within the scope of the arbitration clauses in the contracts
  2. 2 Whether the Scottish Court should have referred the matter to English Courts for opinion on arbitration clauses
  3. 3 Whether the action against the guarantor was premature and whether arrestments should be recalled

Ratio Decidendi

The House of Lords held that the question of whether the dispute fell within the arbitration clauses was a mixed question of fact and law, and should have gone to proof in the Scottish Courts. The Court of Session was not bound to refer the matter to English Courts or to arbitration unless it found it suitable. The dismissal of the guarantor and recall of arrestments was erroneous, as under English law the surety could be pursued without prior establishment of the principal's liability. The order of the Court of Session was set aside and the case remitted for proof.

Court Disposition

Order of the Court of Session set aside; case remitted for proof; prayer for recall of arrestments refused; expenses to appellants from closing of the record.

Orders

  • Remit case to Court of Session for proof of averments.
  • Refuse recall of arrestments.