CHAPTER XVII.

SETTING ASIDE AN AWARD.

SECT. 1.-Grounds for setting aside an Award.

WHERE an arbitrator or umpire has misconducted him- CHAP. XVII. self, or an arbitration or award has been improperly Power to set procured, the court may set the award aside. (Arbitra- asidetion Act, 1889, s. 11 (2).)

of court;

This applies to every award under a submission in reference out writing out of court, which now has the same effect as if it had been made an order of court. (Arbitration Act, 1889, ss. 1, 27.)

order of court.

By section 16 of the Act the court or a judge, as to reference by references under order of the court, have all the powers which by the Act are conferred on the court or a judge as to references by consent out of court.

An application to set aside an award cannot be made at chambers.

It may be necessary to premise, at the outset, that every ground of relief available in equity against an award is equally open in both divisions of the court, upon motion to set it aside (R. v. Wheeler, 3 Burr. 1258; Lingood v. Eade, 2 Atk. 504; Grafham v. Turnbull, 44 L. J., Ch. 538); and that in considering an award upon an application to set it aside, the court will make no distinction between legal and lay arbitrators, or treat the awards made by the one in any manner differently from those made by the other. (Jupp v. Grayson, 1 Cr. M. & R. 523; Huntig v. Ralling, 8 Dow. 879.)

A.

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On the principle de minimis non curat lex, the court refused an application to set aside an award where the matter in dispute was trivial (only two guineas) as compared with the total amount adjudicated upon (Brown v. Hellaby, 26 L. J., Ex. 217; 1 H. & N. 729); but where the award was void for the misconduct of the arbitrators in taking evidence in the absence of the parties, the court set it aside, though the matter in dispute amounted only to a few shillings. (Re Plews and Middleton, 6 Q. B. 845; 14 L. J., Q. B. 139.)

A stipulation in a submission that neither party will attempt to set aside the award for alleged misconduct of the arbitrator, is valid. (Tullis v. Jacson [1892] 3 Ch. 441.)

The grounds upon which an award will be set aside. may be conveniently considered under six heads.

1. Where the award is invalid, as not being certain, or final, or not embracing all matters submitted to the arbitrator. It has already been stated what awards are good and what bad, and it is sufficient here to say, that if an award be clearly bad, for matters apparent on the face of the award, or for matters extrinsic, as for not being certain, or final, or for an excess of authority in the arbitrator, or for the cause that all matters submitted have not been determined by the arbitrator, the court may either remit or set the award aside, in the whole, or in part, according to the circumstances of the case; but if the question whether the award be good or not be doubtful, the court will neither grant an attachment nor set aside the award, but leave the parties to discuss the question of the sufficiency of the award in an action, because, if set aside on motion, there is an end of it altogether, whereas, if an action be brought, the question of its validity may be in general more formally raised, and taken to a court of error.

2. Mistake of the arbitrator. In considering this branch of the subject it is necessary to bear in mind the

reference.

distinction between an arbitrator acting under a reference CHAP, XVII. by consent and a compulsory reference. From the former Compulsory there is no appeal, from the latter there is. Where a compulsory reference to arbitration has been ordered, any party to such reference may appeal from the award or certificate of the arbitrator upon any question of law; and on the application of any party the court may set aside the award on any ground on which the court might set aside the verdict of a jury. (R. S. C. Order LIX., r. 3.) We have previously (ante, p. 262) considered the construction of this rule.

consent.

In the case of a reference by consent, it is necessary to Reference by recognize the distinction between a mistake as to jurisdiction, and a mistake on the merits within the jurisdiction. Where an award is good on the face of it, but the arbitrator has made a mistake either of law or fact, if that mistake has been as to a matter within the arbitrator's authority, then, inasmuch as there is no court. of appeal from the arbitrator, the mistake cannot be remedied (Stimpson v. Emmerson, (1847) 9 L. T., O. S. 199; Adams v. Great North of Scotland Rail. Co. [1891] A. C. 31, 39); nor can the court, even in the exercise of its equitable jurisdiction, set aside the award unless it can be shown that there was misconduct or some other equitable ground for interference. But if the mistake has been as to the extent and nature of the arbitrator's authority leading him to exceed it (Hutcheson v. Eaton, 13 Q. B. D. 861; 51 L. T. 846), then, inasmuch as an excess of authority by mistake is just as much an excess as if it had been in consequence of a wilful disregard of the limits of the authority, the award may be impeached as being made without jurisdiction. (Buccleuch v. Metropolitan Board of Works, 39 L. J., Ex. 137, per Blackburn, J.; Jones v. Corry, 5 Bing. N. C. 187; Great Western Rail. Co. v. Waterford and Limerick Rail. Co., 50 L. J., Ch. 513.)

CHAP. XVII.

As to a mistake on matters within the arbitrator's jurisdiction, it may be laid down as a general rule, that the court will not set aside an award under a reference by consent on the ground of mistake by the arbitrator on a question of law or of fact, unless the mistake appear upon the face of the award, or in some writing contemporaneous with, and intended to form part of it. (Kent v. Elstob, 3 East, 18; Sharman v. Bell, 5 M. & S. 504; Williams v. Jones, 5 M. & R. 3; Payne v. Massey, 9 Moore, 666.) Thus, where the amount due on a London apothecary's bill was referred, the court refused to allow the award to be impeached by affidavits showing that the arbitrator had included in the amount awarded certain illegal charges, as the objection did not appear on the face of the award. (Gensham v. Germain, 11 Moore, 1.) And the court refused to set aside an award where the arbitrator had allowed transactions apparently illegal, as premiums for an insurance to a hostile port, the legality of the ground of insurance being for the consideration of the arbitrator. (Wohlenberg v. Lageman, 6 Taunt. 254.) A mistake as to foreign law is a mistake of fact, and is not a reason for setting aside an award. (Imperial Royal Chartered Azienda v. Funder, 21 W. R. 117.)

It cannot be alleged as ground for setting aside an award on a reference by consent, that it is contrary to the evidence. (Re Bradshaw's Arbitration, 12 Q. B. 562; 17 L. J., Q. B. 362.)

As an arbitrator under a reference by consent is a judge, voluntarily chosen by the parties to decide between them, they cannot object to his decision, whether in the form of an award or certificate (Price v. Price, 9 Dow. 334), that it is unreasonable, or a judgment against law (Baguley v. Markwick, 30 L. J., C. P. 342; 10 C. B., N. S. 61; Fuller v. Fenwick, 3 C. B. 705; 16 L. J., C. P. 79; Fariell v. Eastern Counties Rail. Co., 2 Ex. 344; 17

L. J., Ex. 297), or an erroneous judgment on the facts. CHAP. XVII. (Morgan v. Mather, 2 Ves. jun. 15.) The result of the cases is thus summarized by Williams, J., in Hodgkinson v. Fernie (3 C. B., N. S., 189): "The law has for many years been settled, and remains so to this day, that, where a cause or matters in difference are referred to an arbitrator, whether a lawyer or a layman, he is constituted the sole and final judge of all questions both of law and fact. Many cases have fully established that position where awards have been attempted to be set aside on the ground of the admission of an incompetent witness or the rejection of a competent one. The court has invariably met those applications by saying, 'You have constituted your own tribunal; you are bound by its decision. The only exceptions to that rule are cases where the award is the result of corruption or fraud, and the one other, which, though it is to be regretted, is now, I think, firmly established, namely, where the question of law necessarily arises on the face of the award or upon some paper accompanying and forming part of the award. Though the propriety of this latter may very well be doubted, I think it may be considered as established." (Dinn v. Blake, 44 L. J., C. P. 276; L. R., 10 C. P. 388; ante, p. 258.)

If parties submit to an arbitrator the decision of a bare point of law, and he give an erroneous decision, his award is binding notwithstanding. (Steff v. Andrews, 2 Mad. 6; Ching v. Ching, 6 Ves. 282.)

If the parties submit to an arbitrator a mixed question of law and fact, they impliedly impose upon him the obligation to determine their rights by the application of the rules of law to the facts established in evidence before him, and his award may be good or bad, as it appears upon the face of the award that he has properly done so. When the arbitrator is silent in his award as to his law, the court cannot interfere though he be