PART II. CH. XI. S. 4. arbitrator II. Voluntary statements by the arbitrator.]—It is a question. deserving the deliberate consideration of the arbitrator in each particular case, under what circumstances, and to what extent Whether he should give an explanation of the grounds of his award, in should state answer to inquiries by either party, made with a view of grounds of taking proceedings to impeach or defend it. As a general rule the making such statements is considered inconvenient, and discouraged by the courts. When an arbitrator is willing that the principle of his decision should be reviewed by the courts, he should raise the question by stating a case in his award. If the parties do not during the reference think fit to ask for a case, and the losing party applies for a statement of the grounds of his decision afterwards, the courts will not notice it (o). We have before seen that in many other cases the courts will refuse to receive the arbitrator's statements; when such is the case the explanation would be merely useless (p). award to a party. But assuming the statements available as evidence, and If so both the arbitrator willing to answer questions, it seems advisable, be present. parties should as far as may be, if circumstances permit, to adopt the course followed by some arbitrators, when a verbal explanation is sought, of declining to answer inquiries, unless both parties call together to receive the explanation; for it may be remarked that a verbal ex parte communication is open to objection in some respects: since, if the arbitrator be led into conversation with a party, or with the attorney of one of the parties, alone, it is possible he may do the absent party a serious injury by an unguarded expression, which a question from the latter, had he been present, might have induced him to qualify. It is also possible that the result of the interview may not be exactly and impartially reported. To prevent misconception, the arbitrator, if he can, had better make all his communications in writing. mistake. When the courts were more willing than they now are to Affidavit of set aside an award for mistake, we have previously seen that the affidavit of the arbitrator, admitting that the mistake had (p) P. II. ch. 5, s. 8, d. 2, (0) The London Dock Co. v. St. Paul's Shadwell, 32 L. J. Q. p. 310. PART II. CH. XI. S. 4. Affidavit to explain award. Affidavits of proceedings in the reference. Barrister arbitrator not make affidavit. been made out to his satisfaction, was generally required by Lord Thurlow, C., before he annulled the award (9). So also, the admission of the arbitrator that the award does not carry out his intention is, in many cases, required before the courts will refer back an award for amendment (r). We have before noticed that an affidavit will not be received from an arbitrator to explain his intention in awarding in a particular manner, the terms of the award being clear (s). A narration of mere facts concerning the proceedings in the reference stands on a very different footing from an explanation of the mode in which the arbitrator has performed. his judicial functions, and, when no ground of etiquette interposes, there seems no reason why an arbitrator should not depose to them as well as any one else. Accordingly we find, on motions for setting aside awards, or in showing cause against such motions, affidavits of arbitrators are constantly used in the courts of law and equity to explain alleged irregularities, to answer charges of misconduct, to show under what circumstances particular meetings were held, and in what manner the award was executed (†). III. When the arbitrator is a barrister.]-When the arbitrator happens to be a barrister, he is not usually expected to make an affidavit for the purpose of either supporting or setting aside the award. There is a well understood rule among the members of the bar, that they should decline to make affidavits respecting matters in which they are engaged professionally; in which capacity they are often considered to be acting when filling the office of arbitrator (u). The rule has continually met with the sanction of the courts, and when some members of the bar, in their anxiety to give a full explanation of their conduct as arbitrators, have made affidavits, the courts, on some occasions, have expressed their regret at the step they 241. P. II. ch. 5, s. 8, d. 1, p. 307. (t) Price v. Williams, 1 Ves. Jr. 365; Hare, In re, 6 Bing. N. C. 158, S. C. 8 Dowl. 71; King well v. Elliott, 7 Dowl. 423; Blundell v. Brettargh, 17 Ves. 232; Cleesly v. Peese, 8 Moore, 524; Stalworth v. Inns, 13 M. & W. 466. (u) Dobson v. Groves, 6 Q. B. 637. have taken (x). On a recent occasion, however, where a rule nisi had been obtained to set aside an award on a suggestion, among others, that on one matter in difference the arbitrator had failed to award, and the arbitrator, who was a barrister, felt a reluctance to make an affidavit without the sanction of the court, Erle, J., in the Bail Court, on the difficulty being mentioned to him, said that he did not in this respect see any difference between a barrister and any other arbitrator, and thought that there was no objection to his making the affidavit (y). PART II. CH. XI. S. 4. trator's notes on motion to award. Where a matter had been referred to a barrister, and on Using arbishowing cause against a motion to set aside the award, the counsel proceeded to read a copy of the arbitrator's notes, set aside verified by his clerk, the opposing counsel objected to his doing so, on the ground that it would be in substance infringing on the rule above alluded to. It was stated that the arbitrator was willing to furnish the court with the original notes. But on Coleridge, J., saying the rule laid down by the bar was a very proper one, and that it would certainly be infringing on it if such notes were to be received, the point was not farther pressed, and the notes were not used in the argument (z). The same ground of professional etiquette which precludes Barrister a barrister acting as arbitrator from making an affidavit, will explain to the declining to sometimes induce him to decline answering inquiries of the parties. parties. In a modern case in the Queen's Bench, where a motion was made to set aside the award of an eminent barrister, on the ground of irregularity in examining a witness of the defendant, no one being present on behalf of the plaintiff; the arbitrator in answer to a letter of the defendant's attorney, requesting him to explain the facts, and inquiring whether he would be willing to state on affidavit the circumstances and purpose of the meeting, wrote as follows: "I very deeply regret that I cannot comply with either of your requests. I feel an intense anxiety to explain under what circumstances, and for what purpose, I saw either of those gentlemen on the day you name, but I consider it would be (x) Keene & Atkinson, In re, Ex. Ap. 16, 1847. (y) Ex relatione of counsel. (z) Doe d. Haxby v. Preston, 3 D. & L. 768. PART II. CH. XI. S. 4. Whether court can notice explanatory letter. Court inquiring of the arbitrator the grounds of the award. improper in me to give any such explanation to any of the parties concerned. The court have the power, if they think fit, of calling upon me for an explanation, and I shall be rejoiced if they will afford me the opportunity of giving it; and that they may not be disappointed, I will make it my object to be in court, ready to give any information which may be called for, if you will let me know the day on which it is arranged to dispose of these rules." This letter was brought before the court by the affidavit of the defendant's attorney. The court, however, did not make any application to the arbitrator to explain, but on the evidence contained in the affidavits before them, set aside the award for the irregularity. In giving judgment, Lord Denman, C.J., by noticing the fact that a special pleader present at the meeting, though not professionally, who had declined to make an affidavit on the ground of professional etiquette, might with propriety have given evidence, seems, by his silence respecting the arbitrator's refusal, tacitly to have assented to the correctness of the course adopted by that latter gentleman (a). In one instance, where there were several arbitrators, all barristers, one of whom made an affidavit, while the other two, though declining to make affidavits, wrote letters explanatory of what were the matters in difference on the reference, Pollock, C.B., expressing his regret that the one should have made an affidavit, seemed to think that he might look upon the letters of the other arbitrators as good as affidavits, but Parke, B., doubted whether the court could notice them at all (b). We have before seen that in some instances, though rarely, the court will direct an inquiry to be made of the arbitrator as to particular facts (c). When such is the case, the arbitrator should confine his answer to the points on which the court has asked information, and not go into a general history of the case (d). (a) Dobson v. Groves, 6 Q. B. 637. (b) Keene & Atkinson, In re, Ex. Ap. 16, 1847. See P. II. ch. 5, s. 8, d. 2, p. 313. (c) See P. II. ch. 5, s. 8, d. 3, p. 304. (d) Morgan v. Mather, 2 Ves. Jr. 15. PART THE THIRD. The Consequences of the Award. the scope and part. In this, the last part, taking up the award as made, our Statement of employment is to record its effect, to illustrate the proper contents of mode of performing its requisitions, to exhibit how it may the third be made available as a cause of action or means of defence, either in the Queen's Bench or Chancery Division, and how the award may be enforced by attachment, execution under the statutes, or by judgment and execution in the cause referred. Having provided thus for a valid award, our attention is directed to the steps that may be taken in the case of one that is defective; and succeeding chapters make manifest how, and for what cause, an award may be summarily set aside on motion; the judgment entered pursuant to it in the cause referred annulled; or the award itself impeached in equity. The consequences which follow on the failure of the reference are declared in the chapter that concludes the work. R. L L |