PART II. CH. IV. 8. 1. No exception in case of merchant arbitrator. Inquiry whether party his having himself been guilty of the impropriety of privately communicating with the arbitrator; because it was not a question of mere private consideration between two adverse parties, but a matter concerning the due administration of justice (d). In a modern case in the House of Lords, Lord Cranworth, L. C., said that he agreed with Lord Eldon, that the principles of universal justice required that the person who is to be prejudiced by the evidence ought to be present to hear it taken; and that an arbitrator entirely misconceived his duty who took upon himself to hear evidence behind the back of the party interested in controverting it (e). This course of conduct, of examining one party, or the witnesses of one party, or receiving evidence from one party, in the absence of the other, is often adopted by mercantile arbitrators. But the courts, in the above instance, and in many others, have strongly repudiated the idea that a different course is allowable, in this respect, in the case of mercantile referees; and although the lawful usage of merchants may be imported into the contract of reference, they have said that the practice of receiving evidence which the party affected has no opportunity of meeting is not a lawful usage (ƒ). Notwithstanding the necessity of avoiding in general anyadmits or dis- thing like ex parte proceedings, it was decided by the House putes items. of Lords, in one case, to be no objection to the award, that the arbitrator had, in the absence of one of the parties, called in the other, and asked him whether he admitted or disputed certain items in an account, and had merely taken his answer to that question (g). Private statements to accountant. If on a reference it is arranged that the accounts should be referred to an accountant, and that either party is to be at liberty to examine the books in his presence, it does not seem objectionable for either party, when attending separately before the accountant, to give explanations respecting the items; for the accountant is not the judge, but only an assistant of the arbitrator on the occasion (h). (d) Harvey v. Shelton, 13 L. J. Ch. 466, S. Č. 7 Beav. 455. (e) Drew v. Drew, H. L. March 8, 1855, S. C. Paterson's Appeals, 443. (f) Matson v. Trower, 1 Ry. & Moo. 17; Harvey. Shelton, 7 Beav. 455, S. C. 13 L. J. Ch. 466; Brook v. Delcomyn, 16 C. B. N. S. 403, S. C. 33 L. J. C. P. 246. (g) Anderson v. Wallace, 3 C. & F. 26. (h) Harvey v. Shelton, 7 Beay. 455. But where an accountant was by the submission to be employed to examine and report to the arbitrator, on the books, accounts, and works, and the accountant received explanations from one party as to items in the accounts in the absence of the other, Lord Justice Turner said that that was a course of proceeding which the Court of Chancery could not possibly sanction. He also reprehended the accountant for assuming the authority of excluding from a meeting before him the son of one of the parties whom the father wished to attend (i). PART II. CH. IV. S. 1. If the plaintiff's agent for conducting the reference assent Party's agent consenting. to the defendant calling on the arbitrator alone, and producing his books before him, the plaintiff cannot object to the award on the ground of the private meeting between the defendant and the arbitrator (k). done in the Though we have seen that in general serious objections Private meetmay be made to the proceedings, if a meeting takes place of ing, nothing which one of the parties has no notice, yet if at a meeting so reference. held nothing is done except to discuss the question of adjournment, and the meeting is in fact adjourned without the subjects of the reference being entered upon, the court, it seems, will not set aside the award on the mere ground of the party having had no notice of such a meeting being held (7). IX. Waiving objection to irregular conduct of the arbitrator.] Parties may waive irregu -Though the arbitrator may have been guilty of some larity. irregularity in the course of the reference, it will not vitiate the award, if the conduct of the parties be such as shows that they waive any objection on account of it; but the waiver must be clearly made out (m); and the party must be shown to have full knowledge of the defect which he is said to waive (n). If by the terms of the submission the arbitrators are to Improper appoint an umpire previous to entering on a consideration of enlargement the matters referred, and they enlarge the time for making (i) Haigh v. Haigh, 31 L. J. Ch. 420, S. C. 3 De G. F. & J. 157. (k) Hamilton v. Bankin, 3 De G. & S. 782. (7) Morphett, In re, 2 D. & L. (m) Salkeld, In re, 12 A. & E. 767; Jenkins, In re, 1 Dowl. N. S. 276; Drew v. Leburn, 2 Macq. 1. (n) Darnley, Earl v. London, Chatham and Dover Rail. Co., L. R. 2 H. L. Cas. 43. of time. 967. PART II. CH. IV. S. 1. Improper appointment of umpire. Private examination the award before they appoint an umpire, and the parties, with knowledge of these facts, attend a meeting before the arbitrators, they will be taken to have waived the objection as to the irregular enlargement of the time (o). Even if the arbitrators, without any authority, appoint an umpire, and he be guilty of the irregularity of examining the parties separately, his decision cannot be impeached by them, if they attend before him and make no objection (p). So also it was held, that where the arbitrators excluded the of witnesses. parties and their solicitors, and examined witnesses privately, if either party intended to take advantage of it, he ought to have given notice at the time that he intended to rely on it as an objection (q); and if a party attend meetings after knowing that the arbitrator has examined witnesses behind his back, and without objecting, he has waived the irregularity (»). Irregular meeting. Rehearing. Attending not neces sarily a waiver. So if at a meeting improperly convened, and in the absence of both parties, the arbitrators receive evidence, which they strike out on its being objected to at the next meeting, a party will not be permitted to invalidate the award on the ground of the reception of evidence in an irregular manner, if afterwards he has gone on with the case, examining and crossexamining the witness (s). Rehearing the case before all three arbitrators cures the irregularity of the proceedings before two only, the third arbitrator having been by mistake at first appointed as umpire, and considered an umpire (t). Where a party objected to evidence received in his absence meetings after and to exclusion from certain meetings of persons whom he irregularity reasonably wished to attend on his behalf, his not receding from the reference, and allowing the remaining business to be transacted ex parte, was not treated as an acquiescence in the irregularities, it being clear on the evidence that he had no intention of waiving the objection (u). Attending A party who appears before an arbitrator and protests PART II. CH. IV. S. 1. against his having any authority, and has his protest overruled, does not, by cross-examining his adversary's witnesses, and calling witnesses on his own behalf, preclude himself from meetings under protest. afterwards objecting that the award is void (x). An objection to an award, on the ground of irregular and Waiver by lying by improper conduct on the part of the arbitrators in examining without witnesses ex parte, was held by the Court of Common Pleas objecting. to have been waived by the injured party knowing of their conduct for three weeks before the award is made, without taking any objection; for he has no right to lie by and take his chance of the award, and then, finding that made against him, move to set it aside on the ground of the irregularity (y). The Court of Queen's Bench, however, took this distinction, that where an irregularity took place at a meeting of all the parties, and was passed over, no objection could afterwards be made, but that where witnesses were examined behind the back of one of the parties who wished to be present, as the opportunity of setting right what was irregular was past, he would not be taken to have waived his right to complain merely because, with the knowledge of the circumstance, he had not protested before the award was made (≈). an irregu The result of the above cases seems to show, that if the Arbitrator's arbitrator find that he has inadvertently been betrayed into course to cure an irregularity, which, though fatal in principle, yet in fact larity. does not affect the merits of the case, he may generally prevent any ill consequences by giving the parties full information of the particular step, and proposing to adopt such a course as may seem fit to remedy any possible inconvenience. It will rarely happen that the parties will not either expressly or impliedly agree to waive any objection that might otherwise be taken. x. When arbitrator empowered to proceed ex parte.]-Every arbitrator is authorised, by the nature of his office, to pro (x) Davies v. Price, 6 L. T. N. S. 713; affirmed in error, 34 L. J. Q. B. 8, S. C. 11 L. T. N. S. 203; Ringland v. Lowndes, 17 C. B. N. S. 514, S. C. 33 L. J. C. P. 337; in error, overruling the same case below, 15 C. B. N. S. 173, S. C. 33 L. J. C. P. 25; Sheonath 830. (z) Dobson v. Groves, 6 Q. B. 637. Power to proceed ex parte for cause, implied. PART II. CH. IV. S. 1. Party neglecting to attend. Party attempting to revoke. Notice of intention to proceed ex parte. Peremptory notice for each meeting. ceed ex parte for good cause. It is unnecessary, though not unusual, to give him the power in express terms in the submission. No application to the court is necessary to warrant his so proceeding, but the arbitrator is to judge for himself of the discretion of exercising his power (a). It ought, however, to be a very strong case to justify him proceeding ex parte, as going on with the reference in the absence of one of the parties is so substantial an inconvenience, and so much prevents the doing justice between them (b). Still, if one of the parties, after having been duly summoned, neglect to attend before the arbitrator, and the latter be of opinion, from the circumstances which are brought before his notice, that the party absents himself with a view to prevent justice and defeat the object of the reference, it is the arbitrator's duty to give due notice to the absenting party, that he intends, at a specified time and place, to proceed with the reference, whether the party shall attend or not. If this notice fail to enforce his attendance, and he do not allege some excuse satisfactory to the arbitrator, the latter not only may but ought to proceed ex parte (c). When a party has ineffectually attempted to revoke the submission, and refused to attend a meeting on the ground that the arbitrator has no authority, it has long been decided that the arbitrator may proceed ex parte at once (d). In general the arbitrator is not justified in proceeding ex parte without giving the party absenting himself due notice. The notice may be given verbally or in writing. It should express the arbitrator's intention clearly, or the award may be set aside (e). An ordinary appointment for a meeting, with the addition of the word "peremptory" marked on it, is sufficient (f). If the arbitrator decline to proceed on the first failure to attend a peremptory appointment, and give another appointment, he is not authorised in proceeding ex (a) Wood v. Leake, 12 Ves. 412; Hetley v. Hetley, Kyd on Awards, 100. (b) Gladwin v. Chilcote, 9 Dowl. 550. (c) Waller v. King, 9 Mod. 63; Wood v. Leake, 12 Ves. 412; Hall v. Anderton, In re, 8 Dowl. 326. (d) Harcourt v. Ramsbottom, 1 J. & W. 512. (e) Gladwin v. Chilcote, 9 Dowl. 550; Scott v. Van Sandau, 6 Q. B. 237. (f) Gladwin v. Chilcote, 9 Dowl. 550; Doddington v. Hudson, 1 Bing. 384. |