CHAP. XIV. records. (Beaufort v. Ashburnham, 32 L. J., C. P. 97; 13 C. B., N. S. 598.)

Arbitrator's

charges.

As between the parties, the arbitrator's charges may be reviewed on taxation. (Barnes v. Hayward, 1 H. & N. 742.) But it is not usual for the master to question the arbitrator's charges, but to pass them without inquiry, especially if he be a barrister. (Smith v. Troup, 7 C. B. 757.) In taxation there is no different scale whether the arbitrator be a King's counsel or a junior; but in all cases, it is in the discretion of the master to allow such remuneration as the difficulty and nature of the arbitration may, in his opinion, justify. (Sinclair v. Great Eastern Rail. Co., L. R., 5 C. P. 135; 39 L. J., C. P. 165.) It is only usual to allow ten guineas in the case of a King's counsel, and no larger sum will be allowed in the case of an eminent engineer. (Re Westwood, 81 L. T. Jour. 84; 2 Times L. R. 667; but see Llandrindod Wells Water Co. v. Hawksley, 19 Times L. R. 402.) A lay arbitrator may employ a professional person to draw his award, and the bill of costs of the solicitor may be taxed as between solicitor and client. (Re Collyer-Bristow [1901] 2 K. B. 839.) But where a separate charge was made for a solicitor's costs of preparing the award, the arbitrator having charged a sufficient sum for the award, it was held that the master was right in disallowing the amount of the solicitor's bill of costs. (Galloway v. Keyworth, 23 L. J., C. P. 218; 15 C. B. 228.) It is provided by section 15 (3) of the Arbitration Act, 1889, that the remuneration to be paid to any special referee or arbitrator to whom any matter is referred under order of the court or a judge shall be determined by the court or a judge. This is of little practical importance, and is seldom applied.

If the arbitrator award the defendant to pay the plaintiff his costs of action, to be taxed by the proper officer before a particular day, it is the defendant's business to

have them taxed before that day (Candler v. Fuller, CHAP. XIV. Willes, 62); and if he do not, the plaintiff may proceed

to have them taxed ex parte. (Sadler v. Robins, 1 Camp. 253.)

If a verdict has been taken at nisi prius, and one party is entitled to the costs of the cause and also to the costs of the reference, such costs should be taxed separately, if it is intended to sign judgment for the costs of the action. When the arbitrator directs that the costs of the cause shall be taxed by the proper officer, they should be taxed as upon a verdict to the like effect as the award. (Allenby v. Proudlock, 5 N. & M. 636.)

CHAP. XV.

Power of court to remit the award.

CHAPTER XV.

REFERRING BACK AN AWARD.

AFTER an award is made and published the arbitrator, as we have seen (ante, p. 167), has very limited power to alter it.

But section 10 of the Arbitration Act, 1889, provides that "in all cases of reference to arbitration the court or a judge may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrators or umpire. (52 & 53 Vict. c. 49.) This gives a general power to remit. (Re Stringer and Riley [1901] 1 K. B. 105.)

Although section 10 is one which applies only to references by consent out of court, its provisions are by section 16 of the Act made applicable to references under order of court. And Order XXXVI., r. 52, further contains power of remitting, where a case is referred for trial.

The object of these provisions was, when any error, formal or otherwise, had occurred which would vitiate the award, to enable the court to send it back, if they thought fit, to the arbitrator to correct such error instead of setting the award wholly aside. (Mills v. Bowyer's Society, 3 K. & J. 66.) And the general power to remit back thereby given is not restrained by a clause in the submission, only empowering the court to refer back the award in case of a motion being made to set it aside. (Re Morris and Morris, 6 E. & B. 383; 25 L. J., Q. B. 261.)

An award under the L. C. C. Act, 1845, is within the section, and may be referred back. (Dare Valley Rail. Co. v. Rhys, 38 L. J., Ch. 417; L. R., 4 Ch. 554.) So may an award in a reference under the Public Health

Act, 1875. (Warburton v. Haslingden Local Board, CHAP. XV. 48 L. J., C. P. 451; approved in Knowles v. Bolton Corporation [1900] 2 Q. B. 253.)

The application to remit, which is generally supported by an affidavit of the facts upon which it is founded, may, under section 10 of the Act, be made to the "court or a judge," which means it may be made to a master in chambers. (Order LIV., r. 12a.) The application will be by summons instead of by motion, as contemplated by Order LII., rr. 1-3. An application to remit under Order XXXVI., r. 52 (and see r. 55c), is to the court, and by motion. The summons or motion must be served on the parties affected thereby (R. S. C. Order LII., rr. 1—3), but not upon the arbitrators. (Moseley v. Simpson, 42 L. J., Ch. 739; L. R., 16 Eq. 226.)

A judge at nisi prius, in an action on the award, has no power to remit under relief sought in the counterclaim. (Pedler v. Hardy, 18 Times L. R. 591.) There must be a substantive and independent application.

When by motion, the notice shall state in general terms the grounds of the application, and where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion. (Order LII., r. 4; Mercier v. Pepperell, 19 Ch. D. 58; 51 L. J., Ch. 63.)

Mode of

application.

Notice of

motion and

evidence.

The motion in the King's Bench Division is to the Application Divisional Court; in the Chancery Division to a judge divisions.

in court.

Unless by special leave there must be two clear days between the service of a summons or notice of motion and the day named for hearing the application. (Order LII., r. 5.)

in different

notice.

If by motion, the notice may be in the alternative to Form of set aside or remit the award. And upon a motion simply to set aside the award, the court could exercise its power of remitting the award to cure the defect upon

CHAP. XV.

Within what

tion to remit

should be

made.

which the motion to set aside is grounded. (Anning v. Hartley, 27 L. J., Ex. 145; Peterson v. Ayre, 23 L. J., C. P. 129.)

Even on an application to enforce the award the court, in the event of the application being opposed upon the ground of some manifest defect in the award, may order it to be remitted to the arbitrator instead of dismissing the application.

There is no absolute limit of time within which the time applica- application must be made (Warburton v. Haslingden Local Board, 48 L. J., C. P. 451; Leicester v. Grazebrook, 40 L. T. 883), but the application must be within a reasonable time (Leicester v. Grazebrook, supra), and should generally be made within the same time as an application to set it aside (Doe v. Holmes, 12 Q. B. 951); for the court will not refer matters back where there has been a long delay since the last step was taken upon the award, and such delay is not satisfactorily explained, because the position of the parties may be altered, and they may be unable to produce their witnesses. (Doe v. Cannell, 17 Jur. 347; 22 L. J., Q. B. 321.) Where the application to remit was made more than a year after the award was made, the court refused the application, as it could not then be granted without great inconvenience (Warburton v. Haslingden Local Board, supra) ; but where the necessity to remit arose from a mere clerical blunder in the award, the court remitted it eighteen months after it was made. Ch. 8; L. R., 6 Ch. 22.)

In what cases an award will be remitted.

(Mordue v. Palmer, 40 L. J.,

It has been held that the statutory power of remitting back only applies to such cases as might have been remitted before the Act if the submission had contained a clause to that effect. (Hodgkinson v. Fernie, 27 L. J., C. P. 66; 3 C. B., N. S. 189.) So, it has been held, that the court has only power to refer back in cases in which they would have power to set aside an award.