PART II. CH. VII. S. 1. When arbi tify only. cause, if any, after the award (a). It includes, also, the costs of witnesses present at the trial ready to be examined, but not the costs of a witness who was subpoenaed, but who did not arrive until after the cause was referred, though he was examined the same day before the arbitrator (b). When trator to cer- the arbitrator has only to make a certificate, or an award in the nature of a certificate, it will be seen a little further on that the costs of the reference are considered costs of the cause. If a verdict be taken by consent, subject to a special case to be stated by A. B., who, in the event of the court deciding in favour of the plaintiff, is empowered to direct for what amount the verdict is to be entered, and to whom the action and all matters in difference, subject to the special case, are referred, all costs up to the judgment of the court on the special case are costs in the action (c). Costs of special case. What costs of the reference. Next, as to the cost of the reference. Ordinarily, the expense incurred by the parties of the whole inquiry before the arbitrator, whether with respect to the matters in the cause or the matters out of it, are costs of the reference. They are taxed usually as between party and party (d). They include the costs of witnesses and the costs of a brief in the cause referred, prepared after the reference for the purposes of the arbitration. This is the case even if the arbitrator expressly find that there are no matters in When certifi- difference except in the cause (e). But if the arbitrator has cate made. Costs of drawing submission after stay. to make a certificate, as he is merely substituted for the jury out of court, and there is no award, and nothing but the verdict, all the costs of arriving at that verdict, which therefore necessarily include the costs of the proceedings before the arbitrator, are costs in the cause (f). Where on an action being stayed, as being contrary to an agreement to refer, the parties then prepared and executed a further submission, under which the arbitration took place, it was held that the costs of and incidental to the further submission were part of the costs of the reference (g). PART II. The costs of an accountant employed by the arbitrator, by consent of parties, to examine the defendant's book, and of CH. VII. s. 1. the attendance of the plaintiff's solicitor with the accountant, may be costs of the reference (). Accountant. The costs of the award are the amount of the arbitrator's What costs of charges, which are usually paid to him when the award is award. taken up. As between the parties, if the arbitrator's demand be excessive, the costs of the award are such amount only as on taxation the master deems the arbitrator entitled to have claimed (). In general the master passes the arbitrator's charges without question, especially if he be a barrister. In Arbitrator's charges. Smith v. Troup (k), Wilde, C. J., said, "The master has no control over the arbitrator's charge." Even in the case of a lay arbitrator, the practice in the Court of Queen's Bench used to be not to review the charges without a judge's order, giving the master liberty to do so (7). Such an order is not. now required, and the masters in all the courts do, with the approval of the courts, of their own authority, inquire into the propriety of arbitrators' charges when a serious objection is made to them (m). It was said that there was no particular scale of fees Scale. allowed for Queen's counsel when acting as arbitrators (»); but ten guineas a day seems the sum usually allowed by the masters (0). Arbitration Now by sect. 15 (3) of the Arbitration Act, 1889, Under where any matter is referred to any special referee or Act, 1889. arbitrator under an order, his remuneration shall be determined by the court or judge. pirage. When an award is made by an umpire on the disagree- Costs of umment of the arbitrators, or on their failing to award, he is entitled to charge the fees due to the arbitrators as part of the costs of the umpirage (p). If the umpire fails to charge 21 Q. B. D. 182, S. C. 57 L. J. Q. B. D. 488. (h) Hawkins v. Rigby, 29 L. J. C. P. 228, S. C. 8 C. B. N. S. 271. (i) Brazier v. Bryant, 2 Dowl. 600. (k) 7 C. B. P. 762. (1) Ex relatione of a Master of the Court of Queen's Bench; Threlfall v. Fanshawe, 19 L. J. Q. B. 334; Fitzgerald v. Graves, 5 Taunt. 341. (m) See Webb v. Wyatt, 3 Jur. N. S. 496; Barnes v. Hayward, 1 H. & N. 742. See note (m); Westwood, &c. v. Cape of Good Hope, 2 T. L. R. 667. (n) Sinclair v. Great Eastern Rail. Co., 39 L. J. C. P. 165, S. C. L. R. 5 C. P. 135. (0) Westwood, &c. v. Cape of Good Hope, 2 T. L. R. 667. (p) Ellison v. Ackroyd, 20 L. J. Q. B. 193. PART II. them, the party who has paid the arbitrator's fees will be CH. VII. S. 1. entitled to have the amount allowed him among the other When costs of reference costs of cause. Compulsory reference. Costs of showing cause set aside costs of the reference (2). Under some circumstances, as has before been stated, the costs of the reference have been considered costs in the cause, even when there has been an award made. A plaintiff who had recovered a verdict in trover with large damages consented to take back the goods in reduction of the damages, upon its being referred to an arbitrator, by order of Nisi Prius, to ascertain the amount of deterioration, if any, which amount, with the costs of the cause, were to be paid to the plaintiff. The order of Nisi Prius was silent as to the costs of the reference. The arbitrator made a formal award, finding the amount of the deterioration, and awarded a sum accordingly, but said nothing about costs. The court held that, under the peculiar circumstances of the case, the whole proceedings being for the ease of the defendant, the costs of the reference were costs in the cause, to which the plaintiff was entitled (r). So where a verdict was taken at Nisi Prius for the amount claimed, "to be reduced to such amount as J. S., on a reference to him, should deterinine and award" (nothing being said about costs), and the arbitrator simply awarded that the verdict should be reduced, the court held the plaintiff entitled to the costs of the reference as costs in the cause (s). On a compulsory reference of a cause under the Common Law Procedure Act, 1854, the costs of the reference and award seem to have been part of the costs of the cause (†). The costs of showing cause against a rule for setting aside against rule to an award in a cause, are costs in the cause, and the party who ultimately had the verdict in his favour was entitled to have them taxed for him, even where the award stated a case, and the court reduced the damages (u). But where, after a rule for setting aside an inquisition before the sheriff for excessive damages, the question of amount was referred, nothing being said about the costs of the application, the award. (1) Whitmore v. Friend, C. P. Dec. 1855, per Crowder, J., at Chambers. (r) Tregoning v. Attenborough, 7 Bing. 733; Taylor v. Lady Gordon, 9 Bing. 570. (s) Sim v. Edwards, 25 L. J. C. P. 175, S. C. 17 C. B. 527. (t) Forshaw v. De Wette, L. R. 6 Ex. 200. (u) Goodall v. Ray, 4 Dowl. 1; Clarke v. Owen, 2 H. & W. 324. arbitrator having by his award reduced the damages, it was held that the plaintiff was not entitled to the costs of showing cause (x). The subjects, what are costs of the cause, reference, and award, are further considered in the section on taxation of costs (y). PART II. CH. VII. S. 1. 11. The power of the arbitrator over costs.]—When a cause Arbitrator has implied alone or a cause and all matters in difference are referred, power over and nothing is said in the submission respecting costs, the costs of cause. arbitrator has an implied authority to adjudicate respecting the costs of the cause, but not of the reference or award (z), But not of the and each party must bear his own expenses of the reference, reference or and is liable to half the costs of the award (a). "all Following this principle it was held that when matters in difference between the parties" were referred, the "costs of the said cause and the costs of the reference and award" to be "costs in the cause," the arbitrator had power to deal with them all (b). award. costs includes On a reference of a cause and all matters in difference, if Power over there be an express clause giving the arbitrator power over costs of cause costs, and there appear nothing in the context to limit the and reference. generality of the power, the costs of the reference and award, as well as of the cause, seem to be submitted to his award (c). A reference by agreement giving power over the costs of Power over the reference gives authority to direct as to the costs of the costs of referaward (d). ence. dictment. A reference, concerning all costs, charges, and expenses, in- Costs of incident to an indictment for assault, and the subsequent proceedings thereon, gives the arbitrator power to award costs (x) Lewis v. Harris, 2 B. & C. 620. (y) P. III. ch. 8, s. 2. (z) Firth v. Robinson, 1 B. & C. 277; Taylor v. Lady Gordon, 9 Bing. 570; Strutt v. Rogers, 7 Taunt. 214; Stratton v. Green, 8 Bing. 437; Roe d. Wood v. Doe, 2 T. R. 644; Candler v. Fuller, Willes, 62; Bracher v. Cotton, Barnes, 123; Hartnell v. Hill, Forrest, 73; Massey v. Hall, Rolle Ab. Arb. K. 14; Carpenter v. Joynes, Pract. Reg. 45, contrà, (a) Taylor v. Lady Gordon, 9 248. (c) Strutt v. Rogers, 7 Taunt. 214; Wood v. O'Kelly, 9 East, 436; see R. v. Moate, 3 B. & Ad. 237; Bradley v. Tunstow, 1 B. & P. 34. (d) Walker v. Brown, 51 L. J. Q. B. D. 424, PART II. CH. VII. S. 1. Power as to in respect of the previous as well as subsequent proceedings in the indictment, such as the costs of going before the grand jury (d). Under the Arbitration Act (e), a submission, unless a costs by Arbi- contrary intention is expressed therein, is deemed to include tration Act, 1889. Powers of official referee when whole cause referred. Special referee this provision of the Schedule: "The costs of the reference and award shall be in the discretion of the arbitrators or umpire, who may direct to and by whom and in what manner those costs, or any part thereof, shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client." The act is to apply to any "arbitration" commenced after the commencement of this act under an agreement made before the commencement (s. 25). This provision as to costs is deemed to be included in submissions made before the act (ƒ). By sect. 20 of the Arbitration Act, 1889 (e), it is provided as follows: "Any order made under this act may be made on such terms as to costs, or otherwise, as the authority making the order thinks just." By Ord. XXXVI. r. 55 (b), “where the whole of any cause or matter is referred to an official referee under an order of court, he may, subject to any directions in the order, exercise the same discretion as to costs as a court or judge could have exercised." By r. 55 (c), the provisions of rules 48 to 55 and 55 (b), or arbitrator. shall apply where any cause or matter, or any question or issue of fact therein, is referred to an officer of the court, or to a special referee or arbitrator. Power to give by County Court Act. It was decided that an authority to the master on a comcosts annulled pulsory reference to give costs of the reference became nugatory if he awarded the plaintiff less than 207. in an action, within the stat. 13 & 14 Vict. c. 61, s. 11, which provided that the plaintiff should recover such sum only, and no costs (g); but the propriety of that decision has been doubted in the Court of Appeal (). (d) Baker v. Townsend, 7 Taunt. 422. (e) 52 & 53 Vict. c. 49, s. 2. row, &c. Co., 2 Q. B. D. 385; Bell v. (h) Galatti v. Wakefield, 4 Ex. D. 249. See Bedwell v. Wood, 2 Q. B. D. 626. |