PART II.

REFERENCES UNDER ORDER OF COURT.

INTRODUCTION.

The references dealt with in the Arbitration Act under this heading are not references to arbitration in the ordinary sense of the term, and their inclusion in an Arbitration Act, or in a book on arbitration, causes confusion. These references are nothing more than a delegation by the Court to an officer of the Court of the trial of the whole or any part of an action, or an enquiry by an officer of the Court as to any question in an action upon which the Court requires assistance.

Though a special referee, who may be anyone agreed upon by the parties, is not an ordinary oflicer of the Court, he becomes or is deemed to be an officer of the Court for that purpose when a cause or matter, or any question arising in a cause or matter, is ordered to be referred to him (s. 15 (1) of the Act).

The part of the Arbitration Act entitled "References under order of Court" thus becomes a part of the machinery of the Court for the trial of a particular class of cases in respect of which an action or proceeding in Court has been commenced, or for enquiry or report concerning questions arising in such cases.

The wording of the Act is not "action" but " cause or matter." Upon this an interpretation has been placed by s. 100 of the Judicature Act, 1873, but substantially the Court does not obtain jurisdiction to order a reference until some action or proceeding in Court has been commenced. A submission to arbitration is not a matter" within the meaning of the Act (In re Shaw and Ronaldson, [1892] 1 Q. B. 91).

When an order has been made under s. 13 or 14, the officer of the Court in fact, or the special referee who is deemed to be an officer of the Court, is subject to such rules of Court as are made applicable to him. For example, he must conduct the reference in such manner as may be prescribed by rules of Court (s. 15 (1) of the Act), and his remuneration is to be determined by the Court or a judge (s. 15 (2)). The result is that such a person is in no sense an arbitrator, as he would be in a reference by consent out of Court.

A reference by consent out of Court means a reference to arbitration under a submission by the parties to the dispute. The Court, however,

has inherent jurisdiction, with the consent of the parties, to make an order which is not within either s. 13 or s. 14 of the Arbitration Act, to refer a cause or matter, and all matters in difference, to arbitration. In such a case the order of the Court derives its validity from the consent of the parties. The consent of the parties is the submission, and the person to whom the cause or matter is referred is an arbitrator (not an officer of the Court).

The powers and duties of an arbitrator, whether in a reference by consent out of Court, or by consent in Court in cases where ss. 13 and 14 of the Arbitration Act do not apply, are the same, and are regulated by the provisions of the Arbitration Act as to "References by consent out of Court," unless a contrary intention is expressed in the submission out of Court, or in the submission in Court, as evidenced by the consent order, as the case may be.

The Court has no jurisdiction under s. 14 to do more than order the whole cause or matter or any question or issue of fact therein to be referred for trial. Any order in excess of the powers contained in that section must be by consent, and the reference under an order in excess of the Court's powers under s. 13 or 14 of the Act constitutes a submission to arbitration, as before stated.

Lord Esher, M.R., in a case where an order was drawn up by consent, referring all matters in difference between the parties to an arbitrator, said: "It is said that it is a good order of reference, and no doubt that is so, but it was made under the general authority of a judge to act on the consent of the parties and appoint an arbitrator. The whole validity and force of the order of reference arises from the consent of the parties (Darlington Wagon Co. v. Harding, &c., Steamboat Co., [1891] 1 Q. B. 245, at p. 249). In this case it was held that there was no power to review the award made by the arbitrator on any ground upon which an ordinary award, made on a reference by consent, could not be reviewed.

The Court may also, by consent of the parties, make an order in such a case, giving the parties rights which they would not have under a submission to which the First Schedule of the Act applied, and taking away rights which they would otherwise have, but the reference remains a submission by consent, and subject to all the provisions of the Arbitration Act as to references by consent out of Court, except as varied by the order.

If, for example, the parties consented to an order that the costs of the reference and award should abide the event, the provisions of clause (i) of the First Schedule to the Act would to that extent be excluded, a contrary intention being expressed in the submission, as evidenced by the order (see s. 2 of the Act).

S. 15 of the Arbitration Act is intended to prescribe the mode of carrying out references under s. 14, and although the word "arbitrator" appears in both sections, the term does not apply to an arbitrator acting

under a submission, but to an arbitrator acting under an order of the Court or a judge "in any cause or matter" (Darlington Wagon Co. v. Harding, &c., Steamboat Co., supra).

...

In Lievesley v. Gilmore (1866), L. R. 1 C. P. 570, it was held that an order by consent in which the action and all matters in dispute were referred to arbitration was only evidence of an agreement between the parties to perform the award. Erle, C.J., in that case said: "I think the opinion expressed by Parke, J., in Wentworth v. Bullen (1829), 9 B. & C. 840. . . was perfectly correct. The contract of the parties is not the less a contract and subject to the incidents of a contract because there is superadded the command of a judge. The case of an agreement to refer by order of a judge is a familiar instance, many actions being brought upon such agreements." Montague Smith, J., in the same case (Lievesley v. Gilmore), said: "That an action will lie on a submission by a judge's order is stated in 2 Williams' Saunders 62 b, and in Wharton v. King (1832), 1 Moo. & R. 96, where the precise point now made was taken and overruled by Lord Tenterden."

In the above case (Lievesley v. Gilmore) it was unsuccessfully contended that an action would not lie, and that a judge's order made in an action by the consent of the parties, by which the action and all matters in difference were referred to the award of J. W., could only be enforced by attachment. Erle, C.J., cited instances of submissions to arbitration under order of the Court, where the rights of the parties to which they would otherwise have been entitled were taken away and other rights substituted by the terms of the order consented to.

The order may take the following form:-Upon hearing counsel on both sides and by their consent I do order that the record in this cause be withdrawn and a stet processus entered, and the cause and all matters in difference between the parties be referred to the award of A. B., with power to say what shall be done by the parties, &c. . . . and that the costs of the said cause shall abide the event; and that the costs of the reference and award shall be in the discretion of the said arbitrator (taken from Stockley v. Shopland (1872), 26 L. T. 586).

Where parties agree to refer an action, and desire an arbitration as distinguished from a reference for trial under the Act, it is advisable either that the reference should include all matters in difference, so as to take it outside the scope of s. 14, or if only matters in difference in the action are referred, that the parties should avoid taking an order of the Court for the reference. Otherwise a party who desires to put an end to the litigation and have the matters in dispute determined by arbitration may find that he has consented to a reference for trial under s. 14 of the Act, and that he is taken up to the House of Lords by way of appeal from the decision of the referee or so-called "arbitrator."

SECTION 13.

REFERENCES FOR ENQUIRY OR REPORT.

Previous legislation.

Distinction between reference under s. 13 and under s. 14.

Whether judicial enquiry intended.

At what time the enquiry may be ordered.

Mode of application for a reference before trial.

Form of order of reference.

What questions may be referred.

Direction to ascertain amount of damages.

Continuing and future damage.

Appeal from assessment of damages.

To whom questions may be referred. "Special referee."

Time for making the report.

Form of report.

Generally.

Reasons for findings.

Report as to accounts.

Report as to damages.

Notice of report.

Filing report.

Effect of report.

Application to adopt or vary report, or remit the cause, when further considera

tion adjourned.

Where cause or matter not adjourned.

Whether the Court has power to vary the report.

Where the report disposes of the action.

Master no power to adopt or vary report.

Appeal from an order on motion to vary report.

Power of Court to require explanations or reasons.

Costs in the case of a report under s. 13.

Statement of special case by referee.

13. (1) Subject to rules of Court, and to any right to have particular cases tried by a jury, the Court or a judge may refer any question arising in any cause or matter (other than a criminal proceeding by the Crown) for enquiry or report to any official or special referee.

(2) The report of an official or special referee may be adopted wholly or partially by the Court or a judge, and if so adopted may be enforced as a judgment or order to the same effect.

Previous legislation.

This section is substantially a re-enactment of s. 56 of the Judicature Act, 1873. In subs. (1) the word "or" is substituted for the word "and" in s. 56 of the Judicature Act, 1873, and it now reads "for enquiry or report" instead of "for enquiry and report."

Distinction between reference under s. 13 and under s. 14.

The distinction between a reference under s. 13 and a referenceunder s. 14 is similar to the distinction which existed before the Act between a reference under s. 56 of the Judicature Act, 1873, and a reference under s. 57 of that Act. Lopes, L.J., in Baroness Wenlock v. River Dee Co. (1887), 19 Q. B. D., at p. 160, said: "Ss. 56 and 57, however, clearly contemplate different kinds of report; the one kind of report is a report to be made to the judge or Court requiring information; the other is to be equivalent to the verdict of a jury." In the one case the Court may adopt or partially adopt or reject the report of the referee, as they think right, but in the other case the report has the effect of the verdict of a jury (per Lord Esher, M.R., in Baroness Wenlock v. River Dee Co., supra, at p. 152).

"He [the referee] is not to dispose of the action, and I do not think he is even to determine any matter in issue between the parties; if there are facts disputed . . . the referee must determine the fact and report it; his duty is, instead of determining issues of fact or of law, to find the materials upon which the Court is to act" (per Bramwell, L.J., in Mellin v. Monico (1877), 3 C. P. D., at p. 149).

Whether judicial enquiry intended.

These being the duties of the referee under s. 56 of the JudicatureAct, 1873, the question arose in Baroness Wenlock v. River Dee Co. (supra) whether the referee was to hold a regular judicial enquiry by an examination of witnesses or whether that section was confined to cases where the referee was to enquire by personal observation, and the Court decided that a judicial enquiry was intended. Lord Esher, M.R., considered that the section was not so limited and Lord Justice Fry entertained considerable doubt.

Lord Esher, M.R., said: "The word 'enquiry' in my opinion signifies an enquiry in which he (the referee) is to take evidence and to hold a judicial enquiry in the usual way in which such enquiries are held. The word 'enquiry' is used because it is not meant to have the same result as a trial."

Fry, L.J., said: "For my own part I must say I entertain more doubt whether the intention of the Legislature in that section was not merely to enable the Court to order a referee to make enquiry into the subject-matter by personal observation, and to report to the Court, and not to enable him to make an enquiry by taking evidence of other people. The Court of Chancery had, under 15 & 16 Vict. c. 80, s. 42, power to procure the report of a scientific expert, and I doubt whether the intention was to do anything more than to give a power of that kind to all the divisions of the Court, . . . but, having given expression to these doubts, I must admit that the practice to the contrary referred