Cole -v- Silvermills Estates & Land Limited [2011] CSIH 37. Arbitration.

14 June 2011

An arbiter in a dilapidations dispute between tenant and landlord issued what he himself described as his "final award" and in which he awarded the landlord expenses. The Deed of Submissions gave the arbiter power to award expenses on the Court of Session scale. However, the arbiter omitted to specify the scale (sheriff or Court of Session) that was to apply. The auditor refused to tax the account on the basis of that failure.

The landlord then sought further orders from the arbiter, including stating a scale for taxation, an uplift in solicitor's fees, sanction for counsel and certification of 3 experts. The tenant raised interdict proceedings and obtained interim interdict to stop the arbiter issuing any further orders on the basis that the arbiter was functus officio. At debate, the Lord Ordinary dismissed the tenant's action, concluding that, until the arbiter had issued a decision that could be enforced, he was not functus. The tenant appealed, successfully to the Inner House.

The court concluded that the arbiter was indeed functus officio. The court also held that the auditor was wrong to refuse the remit and that it was implied that he should tax on the Court of Session scale.

Gavin Walker of Axiom represented the successful tenant.

http://www.scotcourts.gov.uk/opinions/2011CSIH37.html