law.

statute.

The Act does not affect revocations by operation of CHAP. IX. The repealed Act was held not to apply when Matters not the submission was incomplete; so that where arbi- within the trators were appointed in pursuance of a clause in a deed that all disputes should be referred to the arbitration of two persons named, who were directed to choose an umpire before proceeding, but the umpire had not been appointed, it was held revocable. (Bright v. Durnell, 4 Dow. 756.) The Act is limited to references of civil proceedings, and when criminal matters are referred the submission is revocable, as at common law. (R. v. Bardell, 5 A. & E. 619; R. v. Shillibeer, 5 Dow. 238; R. v. Hardey, 14 Q. B. 529; 19 L. J., Q. B. 196.)

for leave to

An application to the court, under the statute, for Applications leave to revoke, will, in the Chancery Division, be by revoke. motion or originating summons, and in the King's Bench Division will be at chambers, by summons, and will not be granted ex parte. (Clarke v. Stocken, 2 Bing. N. C. 651; 3 Scott, 94.) It must be made before the award has been executed. (Phipps v. Ingram, 3 Dow. 669.)

of party.

The power will be exercised with great caution, and Grounds for only when good grounds are shown. (James v. Attwood, 7 Scott, 841; Re Woodcroft and Jones, 9 Dow. 538; Belcher v. Roedean School Site, &c., 85 L. T. 468, per Mathew, L.J.) The bankruptcy of one party would Bankruptcy probably be ground for a revocation. (Gaffney v. Killen, 12 Ir. C. L. Rep. (N. S.), App. 25; Marsh v. Wood, 9 B. & C. 659); so would corruption in an arbitrator Misconduct of (Drew v. Drew, 2 Macq. 1; 25 L. T. 282), or his receiving evidence behind the back of the one party (ib.), or two arbitrators appointing an umpire by lot (Re European and American Steam Shipping Co. and Croskey, 29 L. J., C. P. 155; 8 C. B., N. S. 397); or if it be shown that the arbitrator is about to exceed his authority (Faviell v. Eastern Counties Rail. Co., 2 Ex. 350; 17 L. J., Ex.

arbitrator.

CHAP. IX.

Bias of the arbitrator.

Arbitrator's

223; Hart v. Duke, 32 L. J., Q. B. 55), or does not act. (Cooper v. Shuttleworth, 25 L. J., Ex. 114, per Alderson, B.)

The courts regard with jealousy anything like personal interest in an arbitrator, likely to create a bias in his mind. Therefore active litigation between one of the parties to a submission, and the arbitrator, is ground to revoke a submission, although the litigation arose at a period long subsequent to the date of the submission. and in respect of matters unconnected with it. (Re Baring Brothers and Doulton, 61 L. J., Q. B. 704.) Though the mere fact that one of the parties has issued a writ against the arbitrator, charging him with fraud in relation to the contract, does not entitle that party to a revocation of the submission where the arbitrator has taken no positive step in retaliation. (Belcher v. Roedean School Site, &c., 85 L. T. 468.) And where the arbitrator is named in a contract, as for example in a contract for works, the mere fact that the arbitrator is the engineer or servant of one of the parties, is not a ground for revoking the submission, though he may have to decide questions involving his own conduct and skill; the contract of the parties contemplated that he should do so. Leave to revoke will only be given if it is shown that there is a probability that he will be biased. (Eckersley v. Mersey Docks and Harbour Board [1894] 2 Q. B. 667; 71 L. T. 308; Re Donkin and Leeds Canal, 9 Times L. R. 192.) But, where a company, after disputes had arisen, claimed to appoint their manager as arbitrator under a policy of insurance, the court held that they must appoint another arbitrator within a week, or the submission would be revoked. (Re Frankenberg and The Security Co., 10 Times L. R. 393.)

It has been held that the admission of evidence by decision on the arbitrator where such evidence is doubtful (Scott v.

points of

evidence.

Van Sandau, 1 Q. B. 102), or his refusal to exercise a power to state the grounds on which his decision is founded (Clarke v. Stocken, 3 Scott, 94; 2 Bing. N. C. 651), is not a ground for revocation. But the improper admission of evidence which should have been rejected. is ground for revocation. (Re Lord Gerard and London and North-Western Rail. Co. [1894] 2 Q. B. 915; [1895] 1 Q. B. 459; 63 L. J., Q. B. 764; 64 ib. 260.)

If the arbitrator improperly rejects admissible evidence, the aggrieved party may apply to revoke the submission, and the court will revoke his authority, unless the arbitrator will consent to obey the directions of the court in receiving such rejected evidence. (Hart v. Duke, 32 L. J., Q. B. 55; Robinson v. Davies, 49 L. J., Q. B. 218; 5 Q. B. D. 26.) Where an arbitrator is going wrong in point of law, even in a matter within his jurisdiction, the court has power to give leave to revoke a submission; and an arbitrator, having received evidence objected to as tending to vary a written contract, and other evidence, inadmissible in one view of the contract and admissible in another, the House of Lords ordered the revocation unless the parties agreed to the arbitrator stating a special case, showing all the purposes for which he had received, and the effect which he had given to, the different classes of evidence. (East and West India Dock Co. v. Kirk, 12 App. Cas. 738; 57 L. J., Q. B. 295.) But in all these cases of an arbitrator going wrong in point of law on a matter within his jurisdiction, the interference of the court is a matter of discretion. (James v. James, 23 Q. B. D. 12; 58 L. J., Q. B. 424.) Nowadays, instead of an application to revoke the submission, the application would be for an order directing the arbitrator to state a case for the opinion of the court under section 19 of the Arbitration Act, 1889. (See Re Palmer and Hosken [1898] 1 Q. B. 131, 139, per Chitty, L.J.)

CHAP. IX.

CHAP. IX.

Appeal from decision in chambers.

Notice of,

to arbitrator.

Death of a party a revocation.

An applicant cannot set up his own acts as grounds for revocation. (Re Woodcroft and Jones, 9 Dow. 588.) Nor will revocation be allowed because some necessary third party will not concur in the reference, unless, at any rate, the submission was conditional upon his concurrence. And, where an action and a chancery suit were, with the consent of the parties to the action, referred at nisi prius, one of the parties to the chancery suit not being a party to the action, and nothing being said when the suit was referred as to obtaining his consent, his refusal to concur was held no ground for revocation. (Wilson v. Morrell, 15 C. B. 720; 3 C. L. Rep. 333.) Application for leave to revoke unless the other side consented to join on a commission to take evidence abroad was refused. (Re Dreyfus and Paul, 9 Times L. R. 358.) An appeal from a judge at chambers, giving or refusing leave to revoke a submission, lies to the court of appeal, and not to a divisional court. (Re Portland District Council and Tilley [1896] 2 Q. B. 98; 65 L. J., Q. B. 527.)

To make a revocation complete, unless it is by operation must be given of law, notice must be given to the arbitrator. (Marsh v. Bulteel, 5 B. & A. 507; Vynior's Case, 8 Rep. 81, n.) Unless expressly provided to the contrary, the death of either party-where there are only two-to a submission, before the award is made, acts as a revocation of the authority of the arbitrator. (Cooper v. Johnson, 2 B. & A. 394; Tyler v. Jones, 3 B. & C. 144; Blundell v. Brettargh, 17 Ves. 232.) Before the Judicature Act, it was the same where a cause was referred by rule of court or order of nisi prius (Rhodes v. Haigh, 2 B. & C. 345; 3 D. & R. 60; Potts v. Ward, 1 Marsh. 366), even where a verdict was taken subject to an award. (Toussaint v. Hartop, 7 Taunt. 571.) Now, however, it is assumed that if, after the reference of an action, one of the parties dies, but his personal representatives are substituted under R. S. C.

1883, Order XVII., r. 4, the award would be enforced against them. But, where the cause of action is a tort, and after the reference and before award one of the parties dies, his representatives cannot be substituted, as the cause of action is gone. (Chapman v. Day, 49 L. T. 436; Bowker v. Evans, 15 Q. B. D. 565; 54 L. J., Q. B. 421.) The award is futile.

Where the arbitrators were to make and publish their award in writing, ready to be delivered to the parties in difference before a certain day, it was held that the execution of the award in the lifetime of the plaintiff was sufficient to make it valid, though the plaintiff died before notice of it to either party to the reference. (Brooke v. Mitchell, 6 M. & W. 473.)

CHAP. IX.

Where the arbitrator is in the position of a person Not, in case of appointed by vendor and purchaser to fix the value and a valuation. price of an estate sold, the death of either party does not operate as a revocation of the submission. (Caledonian Rail. Co. v. Lockhart, 3 Macq. 808.)

death of one

of several parties a

revocation.

It seems very questionable whether an award, after Whether the death of one of several parties on one side of a reference, is void (Re Hare, 8 Scott, 367; 8 Dow. 71, per Tindal, C.J.), and it will not be so if the submission provide that it may be delivered to the parties or their personal representatives. (Ib.; Harding v. Wickham, 9 W. R. 652; 4 L. T., N. S. 738.) Without such a provision it seems the death of one of several parties on the same side to a joint and several submission, is not a revocation as to the others. (Vynior's Case, 8 Rep. 82, n.) Therefore, where differences arose between the owners of a ship and the freighters (the latter having distinct interests in the cargo), and it was agreed between them that the matters in difference should be referred, it was held that the death of one of the freighters, before award made, only affected the award as to him, and was no revocation as to the others. (Per Three Justices,