Am Bratach No. 235
May 2011
editor@bratach.co.uk


Arbitration 1950s style
John Campbell QC recalls how his farmer father handled a ‘dispute’ over tups

I come from Balblair, Bonar-Bridge, and grew up there. For three generations Campbells had been sheep farmers at Shinness and on the Forest Farm (technically Ross-shire, I think, but you get the idea!). 

I now work in the law in Edinburgh, where I have been since the late 60s. With the passage of time, it’s not as clear now as it was then why I ended up here! 

Having long been interested in arbitration, and in finding ways of helping people to solve their own disputes, I decided to have a look at whether or not that means of resolving disputes had ever been used in disagreements about sheep. You will know that such disagreements are common, since north country farmers take such a pride in their stock, and have a very clear view about their value. Their ideas are usually quite different from those of the buyer, grizzled veterans of Macdonald and Fraser’s ringside.

 

John Campbell QC.

I discovered that in a disagreement about the sale of some Forest Farm tups, back in the 1950s, arbitration had come into its own. The buyer and my father had not been able to agree on a price, but they knew they wanted to sell and to buy, and had at least agreed that much. Whether that was really a contract, or just an “agreement to agree”, was a moot point, but they were going to trade. They had many years experience of transacting with one another, and it seemed to them to be a nonsense to spend money on lawyers and advisers if they didn’t have to; I mean, where would they find someone who knew more about Blackies than themselves?

The Agreement to Arbitrate was a handwritten letter signed by them both, and sent to the local auctioneer. He was to fix the price. Both men knew him and trusted him; his experience, his knowledge of the breed, and above all his independence. There would have been no other way to resolve the disagreement. And in due course he came to the farm, walked over the sheep, poking here with his stick and touching and testing there with his hand. After a bit he was taken inside, and put in the dining room with a bottle of ’Morangie (or perhaps a cup of tea, but that seems less likely!) and he wrote his Award, fixing the price of the sheep. 

I was sent for a twopenny stamp, and watched as with great solemnity he signed his signature over the stamp (that being a requirement of the Stamp Duty laws of those times). Both farmers were happy, and the “Great Man” went on his way. His fee was thirty shillings, and the case took three or four hours (allowing time for the craic as well!).

Of course, times have moved on, and even between friends, business isn’t done that way now — we need to be certain that we know what will happen if it all goes wrong, and we are obsessed, it seems, with the minutiae of rules. But the intrinsic fairness, and “rightness” of imparting your dispute to a man of skill whom you trust has never left me, and that is what I see at the very heart of the new Scottish Arbitration (Scotland) Act 2010, so courageously brought into our law by the outgoing Scottish Government. They must be heartily congratulated for this. Today, it all probably needs to be a little more complicated — there would no doubt be a warranty of fertility, a warranty of pedigree, a veterinary examination to check for all manner of sickness and disease, a formal agreement to arbitrate, some basic pleadings, legal “what if” submissions and all the rest — but cutting it back to the bone the sheep story tells you that all you really need are a clear idea of what you want to have determined, a trusted arbitrator, and a clear notion of your own case. 
Do we lawyers always bring those things to the table? Perhaps not always!

John Campbell was called to the Bar in 1981, joined the English Bar in 1990, took silk in 1998 and has practised throughout the UK for twenty-eight years.

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