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must be given to both parties, or the award will be void. (Oswald v. Grey, 24 L. J., Q. B. 69; Hobbs v. Ferrars, 8 Dow. 779; Anon., 1 Salk. 71); but if nothing is done, except to adjourn, at a meeting of which no notice is given to one party, the award will not be bad. (Re Morphett, 2 D. & L. 967.) The arbitrator may revoke an appointment, or insist upon it notwithstanding it may be inconvenient for one of the parties to attend (Eastham v. Tyler, 2 B. C. Rep. 136); nor, is it any ground for removing an arbitrator, that he refuses to alter the date appointed, to an earlier date, because the principal witness of one of the parties is going abroad before the date fixed (Re Whitwham and Wrexham Rail. Co., 39 Sol. J. 692), or, to set aside an award, that the solicitor of one of the parties says he cannot attend at the time the arbitrator appoints; he must attend if the time is reasonable, and, failing, the arbitrator may proceed in his absence. (Fetherstone v. Cooper, 9 Ves. 67.) It is usual to consult the convenience of both parties in fixing the day.



When one party is about to employ counsel, it is his Attendance of duty to give notice thereof to the opposite party, to enable him to do likewise. (Whatley v. Morland, 2 Dow.

249.) In exercise of the power which an arbitrator has of regulating the proceedings before him (see Collier v. Hicks, 2 B. & Ad. 672), he can refuse to allow the parties to be represented by advocates, and may, in his discretion, decline to hear counsel (Re Macqueen, 9 C. B., N. S. 793), or solicitors. It is only usual for one counsel to attend on each side, but in cases of difficulty more than one on each side may attend, and their fees will be allowed on taxation of costs. (Sinclair v. Great Eastern Rail. Co., 39 L. J., C. P. 165; L. R., 5 C. P. 135.)

It is said that there may be peculiar cases in which Excluding the parties and the arbitrator would be justified in excluding the parties

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(provided he exclude both) and their solicitors, during the examination of witnesses (Hewlett v. Laycock, 2 C. & P. 574; Matson v. Trower, Ry. & M. 18; sed quære, 2 Lush's Practice, 1046); but such cases are exceedingly rare, and the tendency of modern decisions is to establish, that in conducting a reference the arbitrator should allow all the parties the amplest opportunities of elucidating and establishing their claims, and place no unreasonable or factious restrictions upon either party so as to prejudice his interests. Thus, we must regard Re Haigh's Estate (3 De G., F. & J. 157; 31 L. J., Ch. 420), in which an award was set aside because the arbitrator had excluded from some of the meetings, in a reference in which a partnership accounts were concerned, the son of one of the parties who was conversant with the accounts, and also a shorthand writer, both of whom the party wished to have present, as indicating the limits within which an arbitrator may exercise his discretion, rather than Tillam v. Copp (3 C. B. 211), in which an arbitrator in a farming case was held justified in excluding a stranger skilled in agriculture, brought to assist the defendant's solicitor in conducting the case. "Except in the few cases where exceptions are unavoidable," says Lord Langdale, "both sides must be heard, and each in the presence of the other." (Harvey v. Shelton, 7 Beav. 462; 13 L. J., Ch. 466.) And Turner, L.J., thus clearly defines the restrictions upon the arbitrator's power of exclusion: "Before he excludes anyone from attending on behalf of any of the parties interested, he is bound to ascertain that there is good reason for the exclusion, and to take the best care he can that the party who is affected by the exclusion is not prejudiced by it." (Re Haigh's Estate, supra.)

The mode of proceeding at a reference is, as near as may be, the same as in an action at nisi prius. Thus, the party to begin makes a short statement of his case

(this may, at the option of the arbitrator, be dispensed CHAP. XI. with), and then calls his witnesses in support of it, who of course may be cross-examined; the other party then makes a short statement of his case, and produces his evidence in support of it; he then replies on the whole case, and the party beginning has a general reply. If any question arise as to who is entitled to begin, the arbitrator will decide it. The mode of conducting a reference being, however, in the discretion of the arbitrator, will sometimes vary from the above.

rules of

It has been held that an arbitrator, though bound to Arbitrator act according to the general rules of law, is not bound not bound by by the strict rules of practice, but is to do justice practice. between the parties according to the particular circumstances of the case. (Re Badger, 2 B. & A. 691; Knox v. Symmonds, 1 Ves. jun. 369.)

Where matters are referred under an agreement, and Power to the parties furnish particulars of claim, and defence and amend particulars counterclaim, the documents are in the nature of plead- of claim. ings and particulars, and can be amended by the arbitrator

to enable all points in dispute between the parties relating to the subject-matter to be raised before him and dealt with. (Edward Lloyd Limited v. Sturgeon Falls Co., 85

L. T. 162.)

If the submission prescribe any act which is a con- Performance dition precedent to the reference, it must be performed of conditions precedent. or the award will be bad. Such is the declaration required under the L. C. C. Act, 1845, and other statutes. (Ante, p. 134.) If the parties agree to waive any objection on account of an omission of the arbitrator to make the declaration they are estopped from afterwards insisting upon it. (Palmer v. Metropolitan Rail. Co., 31 L. J., Q. B. 259.) The locality where the declaration is made is not essential to the validity of the declaration, and it is no objection that it is not made before a justice of the county where the matter in




View of the premises.

dispute arose. (Davies v. South Stafford. Rail. Co., 21 L. J., M. C. 52.)

Unless a view of the premises is obligatory by the terms of the submission (Spence v. Eastern Counties Rail. Co., 7 Dow. 697), it is in the discretion of an arbitrator, to whom an action for work has been referred, to inspect the premises on which the work was done, and his refusal to inspect is no ground for setting aside his award. (Mundy v. Black, 9 C. B., N. S. 557; 30 L. J., C. P. 193.)


of the parties and production of their


Enforced by committal.


SECT. 2.-Witnesses.

The Arbitration Act, 1889, makes provision for the compulsory attendance of witnesses and production of documents, in the case of references by consent out of court.

The parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire, on oath or affirmation, in relation to the matters in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire, all books, deeds, papers, accounts, writings, and documents within their possession or power respectively which may be required or called for, and do all other things which during the proceedings on the reference the arbitrators or umpire may require. (Arbitration Act, 1889, sched. 1, cl. (f).)

As a submission under the Act has the same effect as if it had been made an order of court, any disobedience of the parties to an order of the arbitrator may be punished by committal for contempt.

The jurisdiction to order discovery of documents is in the hands of the arbitrator (post, p. 148), and application should not be made to the court. (Penrice v. Williams, 23 Ch. D. 353; 52 L. J., Ch. 593.)

Any party to a submission may sue out a writ of CHAP. XI. subpoena ad testificandum, or a writ of subpoena duces Enforcing tecum, but no person shall be compelled under any such attendance of writ to produce any document which he could not be compelled to produce on the trial of an action. (Arbitration Act, 1889, s. 8.)

The writs issue as of course, and may be obtained at the writ department of the Central Office without an order. The procedure as to the issue of writs of subpoena is governed by R. S. C. Order XXXVII., rr. 26-34.

A person subpoenaed to attend, and refusing, cannot be committed for contempt until a reasonable sum has been tendered to cover the cost of coming and his expenses.

When a witness produces a mass of documents, a party is not entitled to put in the whole en bloc, or to go through them seriatim; he should take an adjournment to ascertain which are material. (Re The Maplin Sands, 71 L. T. 594.)

Before the Act the mode of enforcing the attendance of witnesses and the production of documents was by a judge's order. (Ante, p. 40.)


to examine

The court has no power to order a commission to issue Commission to examine witnesses abroad in aid of an arbitration. witnesses. (Re Shaw and Ronaldson [1892] 1 Q. B. 91; 61 L. J.,

Q. B. 141; Re Dreyfus and Paul, 37 Sol. J. 357; 9
Times L. R. 358.)

When a matter is referred by a county court judge, he has jurisdiction to compel the attendance of witnesses before the arbitrator (Re Ackary, 3 Ch. D. 125; 45 L. J., Bkey. 133), and may commit to prison a party who refuses to produce documents according to the terms of the order of reference. (Richards v. Cullerne, 7 Q. B. D. 623.)

Jurisdiction of county court judge over wit


The court or a judge may order that a writ of subpœna Compelling

L 2


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