СНАР. Х.

Negligence or unskilfulness.

Arbitrator made defendant in proceedings to impeach an award.

there does not seem to be any instance of such an action. But, where, under a building contract, the certificate of an architect that he was satisfied, was a condition precedent to payment, it was held that an action would lie against the architect for a fraudulent refusal to certify. (Ludbrook v. Barrett, 25 W. R. 649; 46 L. J., C. P. 798; approved, Stevenson v. Watson, 4 C. P. D. 159.)

Wilful misconduct in an arbitrator appointed under the L. C. C. Act, 1845, or the Railways Clauses Act, 1845, is a misdemeanor. (8 & 9 Vict. c. 18, s. 33; 8 & 9 Vict. c. 20, s. 134.)

If an arbitrator act honestly, an action will not lie against him for want of skill or care, or for negligence in performing his duties. (Pappa v. Rose, 41 L. J., C. P. 187; L. R., 7 C. P. 525; Tharsis Sulphur and Copper Co. v. Loftus, 42 L. J., C. P. 6; L. R., 8 C. P. 1; Stevenson v. Watson, 48 L. J., C. P. 318; 4 C. P. D. 148.) Even a person who is not an arbitrator in the strict sense of the term, but undertakes to conclude a disputed fact left to his decision, is not liable to such an action. Nor is an architect issuing certificates for work done under a building contract. (Chambers v. Goldthorpe [1901] 1 K. B. 624; Restell v. Nye, ib.; 16 Times L. R. 154.) But a mere valuer, who has held himself out as such for reward, is liable. (Turner v. Goulden, 43 L. J., C. P. 60; L. R., 9 C. P. 57; Jenkins v. Betham, 24 L. J., C. P. 94; 15 C. B. 168.)

Under the practice of the old courts of equity it was a rule that in general an arbitrator could not be made a party to a bill for the purpose of impeaching an award. In some cases, nevertheless, where an award was impeached on the ground of gross misconduct in the arbitrators, and they were made parties to the suit, the court ordered them to pay the costs. (Chicot v. Lequesne, 2 Ves. sen. 315; Lingood v. Croucher, 2 Atk.

395; Hamilton v. Bankin, 3 De G. & S. 782; see, per CHAP. X. Jessel, M.R., Mathias v. Yetts, 46 L. T. 502.) But now, it is not proper to make an arbitrator a party to an action simply for the purpose of asking for costs, if no other relief is sought against him. (Amos v. Herne Bay, &c. Co., 54 L. T. 264; Burstall v. Beyfus, 26 Ch. D. 35; 53 L. J., Ch. 565.)

SECT. 4.-When an Arbitrator may be called as a

Witness.

competent

facts of the

reference.

An arbitrator may often be called as a witness to Arbitrator prove facts which occurred or came under his notice witness as to during the reference. (Roberts v. Corbett, 20 L. T. 66.) He cannot, however, be admitted, or called upon, to give evidence of any concessions made by one party during the reference for the purpose of bringing peace and getting rid of a suit, but there is no objection to his proving regular admissions made by the parties in the course of the proceedings. (Westlake v. Collard, Bull. N. P. 230; Slack v. Buchanan, Peake, N. P. C. 6; Gregory v. Howard, 3 Esp. 113.) And an abstract furnished by one party before an arbitrator was admitted as evidence in a future suit, in a court of law, against the same party. (Doe v. Evans, 3 C. & P. 219.) But an arbitrator cannot be allowed, in a subsequent trial of the same cause of action, to prove the result of an examination of the parties, or of an inspection of their books, pending a reference to him. (Habershon v. Troby, 3 Esp. 38.)

matter he

The evidence of an arbitrator is also admissible to And to show show in respect of what matters he exercised jurisdiction. over what (Duke of Buccleuch v. Metropolitan Board of Works, exercised jurisdiction. 39 L. J., Ex. 130; 41 L. J., Ex. 137; L. R., 5 Ex. 221; 5 H. L. 418.) "Any attempt to annoy an arbitrator, by

СНАР. Х.

But not as to

his reasons for his award.

asking questions to show that he had mistaken the law, or found a verdict against the weight of evidence, should be checked, for these matters are irrelevant. But where the question is whether he did or did not entertain a question over which he had no jurisdiction, the matter is relevant, and nobody can be better qualified to give evidence on that matter than he." (Ib., per Blackburn, J., 39 L. J., Ex. 138.) In that case the House of Lords held the arbitrator's evidence admissible to show whether he had adjudicated upon matters not within his jurisdiction. Hart, L. C. of Ireland, had expressed an opinion in an earlier case of Brophy v. Holmes (2 Molloy, 1), that though an award was good on the face of it, and purported to be an adjudication on all matters in difference brought before the arbitrators, the arbitrators themselves might be examined whether they did in fact exercise the jurisdiction, and include in their consideration as matters in difference certain matters brought before them. In Re Rhys and Dare Valley Rail. Co. (37 L. J., Ch. 719; L. R., 6 Eq. 429), the evidence of an arbitrator was held admissible, upon a motion to set aside an award, to show whether he had mistakenly awarded on wrong subject-matter, or made a mistake in legal principle going directly to the basis on which the award was founded; though, in an old case, the court refused to allow the arbitrator to be called to give such evidence as would in fact contradict his award, the terms of the award being clear. (Shelling v. Farmer, 1 Str. 646.)

An arbitrator cannot be examined as to the mental process by which he arrived at his award in respect of matters within his jurisdiction. (Duke of Buccleuch v. Metropolitan Board of Works, supra; Ellis v. Saltau, 4 C. & P. 327, n.)

The above rules apply to actions upon the award in which the rules of evidence are to be observed. Upon

an application to set aside or remit an award, on the ground of mistake or misconception of the arbitrator, the court to which the application was made would probably reject no means of informing itself whether the arbitrator had proceeded upon such mistake or misconception. (Duke of Buccleuch v. Metropolitan Board of Works, supra, per Cleasby, B.; and see post, Chap. XV.)

An arbitrator may be called to prove that certain matters were not included in matters referred (Ravee v. Farmer, 4 T. R. 146); or that a specific claim was not made before him. (Martin v. Thornton, 4 Esp. 180.) And he may be asked whether he was requested by either party to find on specific issues, he being authorized to award generally unless so requested. (Wilson v. Hinckley, 18 L. T., N. S. 695.)

The notes of evidence taken by an arbitrator are his own, and the court has no power to compel the production of them, or deal with them, any more than with a judge's minutes. (Scougull v. Campbell, 1 Chitt. 283.)

CHAP. X.

arbitrator a

It is a well understood rule of the profession, approved When by the courts, that a barrister should decline to make an barrister. affidavit respecting his conduct as an arbitrator. (Dobson v. Groves, 6 Q. B. 637; Doe v. Preston, 3 D. & L. 768.)

CHAPTER XI.

PROCEEDINGS BEFORE THE ARBITRATOR,

CHAP. XI.

Procuring an appointment for the hearing.

Power of

arbitrator as to the proceedings.

SECT. 1.-Preliminaries.

THE arbitrator having consented to undertake the office, one of the parties should apply to him for a written appointment of a day for hearing the case. It is usual to try and arrange a day convenient for all the parties.

Where several arbitrators are appointed, they should all concur in naming a day, unless the submission empowers the majority to award, in which case the majority may appoint a reasonable time, and, if the others do not attend after notice of such appointment, may proceed in their absence. (Goodman v. Sayers, 2 J. & W. 261.) Absenting arbitrators should have notice of every meeting.

The submission, or order of reference, should be left with the arbitrator, that he may know the duties he has to perform and the powers with which he is invested.

Subject to the obligation to conduct it as nearly as may be like a trial before a judge (post, p. 148), the mode of conducting a reference lies almost wholly in the discretion of the arbitrator. Like other judges, however, he is bound to observe in his proceedings the ordinary rules laid down for the administration of justice. (Re Haigh's Estate, 31 L. J., Ch. 420; 3 De G., F. & J. 157.) Appointment He appoints the times and places of meeting and adjournment, but they must be reasonable, and notice thereof

of meetings.