« EelmineJätka »
also for irregu
larity in pro
arbitrator refuses to hear evidence or acts in haste,
Gross carelessness of such a nature as to amount in a Award will be set aside for judicial sense to misconduct, will be a ground for setting aside an award (Hall v. Hinds, 2 M. & G. 847). Also, ness, where an arbitrator has not applied his mind to the matters contained in the submission, and so has not really adjudicated on them (Flynn v. Robertson, 4 L. R. C. P. 324). Irregularity in the proceedings before the arbitrator are also a ground of setting aside the award, as the Courts will not allow such proceedings to cause a miscarriage of justice. So, where the and where the arbitrator refuses to hear evidence, or to examine a material witness, when the evidence has been tendered and the witness has presented himself; and where the arbitrator has not given notice to the parties of the time and place of meeting, or if he act in haste, and does not allow one of the witnesses to finish his case, if he refuse to postpone a meeting in order to enable one of the parties to obtain legal assistance, where the other side unexpectedly appears by counsel (Whatley v. Morland, 2 Dowl. 249.) All and each of these cases would be a ground for setting aside the award. There may be serious legal misconduct on the part of the arbitrator sufficient to set the award aside, where there is not the slightest ground for imputing improper motive morally to the arbitrator (Phipps v. Ingram, 3 Dowl. 669). Unless upon the Courts will ground of fraud or corruption, the Courts will not enquire into the merits of the case, where the sub- tor. mission is by consent, on an application to set aside the award, as the parties exercised their choice of arbitrator, and having chosen arbitration as a mode of settlement in preference to a Court of Law, they must
or refuses to
not interfere with arbitra
abide by the decision of the tribunal that they have established (Hodgkinson v. Fernie, 3 C. B. N. S. 189). In his judgment in that case, Williams, J., says:-"The law has been settled for many years, and remains so to this day, that where a cause and all 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 this position, where attempts have been made to set aside awards 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.'" Brett, J., quoted and approved of that judgment, in the case of Dinn v. Blake, 10 L. R. C. P. 389. TN JOAN GORMLEY. Where one of the parties to the submission, examined by the arbitrator, was a felon who had returned before the expiration of his sentence, and was at that time incompetent as a witness, the Court would not on that ground alone set aside the award. In that case the arbitrator stated that he had made his award without reference to the evidence of either of the parties, as he considered both of them unworthy of credit (Smith v. Sainsbury, 9 Bing. 31). The Court will not set aside an award on the sole is forthcoming. ground that fresh evidence has been discovered since the award was made, unless it can be proved that such evidence was not procurable before the arbitrator made his award (Eardley v. Otley, 2 Chit. 42). Neither will an award be set aside on the ground
Nor where one
that one of the parties has been surprised by the nature of the evidence brought forward by his opponent, and which evidence he has reason to doubt, for he could at any time during the proceedCings have made an application to the arbitrator for the purpose of enquiring into the truth or otherwise of the case unexpectedly set up; and having omitted to do so at the proper time, he must take the consequences (Solomon v. Solomon, 28 L. J. Ex. 129). An award will not be set aside on the ground of perjury alleged against one of the witnesses, as the party affected by it can obtain relief in the Courts by taking proceedings against such witness (Scales v. East London Waterworks Co., 1 Hodges, 91).
In all cases where application is made to set aside Courts must the award, the Courts will not grant such application be convinced unless convinced of its necessity, as it is against the policy of a Court of Justice to interfere with the decision of an arbitrator (Templeman v. Reed, 9 Dowl. 906). Where the award is altogether void, the Court will not on that ground set it aside, if nothing can be done with it without application to the Court, for such application must fail on account of the award being a nullity; but if the party can enforce it, without application to the Court to enable him to do so, as where the arbitrator awarded a verdict to be entered, the Court will set it aside, although the submission has been revoked; and for this reason, that if the award were allowed to remain the party could obtain judgment and issue execution (Doe v. Brown, 5 B. & C. 384). Where there are Where arbiseveral arbitrators, and two of their number take trators take
JOHN A. GORMLEY.
the absence of evidence without the other being present, or having
one of their
had notice, the award will be set aside, but not if the third arbitrator stay away after notice has been given (Dalling v. Matchett, Willes, 215). Also, if the award is not duly executed by all the arbitrators in the presence of each other (Wade v. Dowling, 4 E. & B. 44). The above examples will show clearly the grounds upon which an award will be set aside. They may be briefly summed up by saying that where the award is invalid-uncertain-where the proceedings are irregular, where there is fraud on the part of the arbitrator, where the award has been obtained by misrepresentation of facts by one of the parties, where the award is altogether bad, in all these and similar cases, it will be set aside.
Application to set aside
award to be by motion.
TIME WITHIN WHICH A MOTION TO SET ASIDE AN
AWARD MUST BE MADE.
THE application to set aside an award must be made by motion, notice of which must be given to the opposite side, but not necessarily to the arbitrator. Before an application to set aside can be made, the submission must be made a rule of Court, except in case of a compulsory reference under the Common Law Procedure Act, 1854. The notice must state
the grounds of the application; and where the application is founded on evidence given by affidavit, a copy of the affidavit shall be served with such notice. The motion to set aside an award must be made before the last day of the term following that which the award is made. This rule applies, course, to cases where the award is made in one the law terms; but if the award is made in vacation, then the application to set it aside should be made before the last day of the term next ensuing. By 9 & 10 Wm. 3, c. 15, s. 2, it is provided that "Any arbitration or umpirage procured by corruption or undue means, shall be judged and esteemed void and of none effect, and accordingly be set aside by any Court of law or equity, so as complaint of such corruption or undue practice be made in the Court where the rule is made for submission to such arbitration or umpirage before the last day of the next term after such arbitration or umpirage made and published to the parties, anything in this Act contained to the contrary notwithstanding." In order to bring the submission under this section, it must not only be in writing, but must also contain a clause enabling the parties to make it a rule of Court (Smith v. Whitmore, 33 L. J. Ch. 218).
Law terms having been abolished by the Judicature Acts, the Rules of the Supreme Court, Order LXIII., r. 1, provide that the sittings of the Court of Appeal, and the sittings in London and Middlesex, shall be four in each year the Michaelmas sittings, the Hilary sittings, the Easter sittings, and the Trinity sittings. These sittings are in substitution of the
Law terms abolished by Judicature