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Proceedings on

reference resemble those in an action.

Witnesses to

such t'me and place before the arbitrator with their witnesses and the evidence necessary to support their case (Fetherstone v. Cooper, 9 Ves. 67). As the parties to a reference are not always prepared to proceed at once with their case, their convenience should, as far as possible, be consulted, and the arbitrator should not fix too early a day for them to appear before him, as great inconvenience might thereby be caused, as well as injustice done. It is desirable that the arbitrator should have the facts of the case fixed in his mind, before the commencement of the proceedings in the reference, so that, being in possession of the facts, he can the more easily discern the bearing of the evidence upon them.

The proceedings before an arbitrator resemble very closely the various phases of an action, and the party who occupies the position of the plaintiff in a Court of Justice, opens his case either personally or by his legal adviser. If it is the intention of one of the parties to employ counsel to represent him, notice to that effect should be given to the opposite side, so that an equal advantage may be obtained if it is considered desirable (Whatley v. Morland, 2 Dowl. 249). After the plaintiff's opening statement, witnesses are called in the usual way, and the matter proceeds, following, as we have said, as far as possible, the proceedings in a trial before a Judge.

The witnesses must be served with a notice that be served with their attendance will be required at the time and

notice of


place appointed, and such notice must be signed by the arbitrator. The statute 3 & 4 Will. IV. c. 42, s. 40, provides, "That where the submission is by

rule of Court, Judge's order, or at Nisi Prius in an action, or by agreement containing a consent to such submission being made a rule of Court, it shall be lawful for the Court by which such rule or order shall be made, or which shall be mentioned in such agreement, or for any Judge by rule or order to be made for that purpose, to command the attendance and examination of any person, to be named in such rule or order, and the disobedience to any such rule or order shall be deemed a contempt of Court if, in addition to the service of such rule or order, an appointment of the time and place of attendance in obedience thereto, signed by one at least of the arbitrators or the umpire before whom such attendance is required, shall also be served, either together with, or after the service of such rule or order, provided always that every person whose attendance shall be so required, shall be entitled to the like conduct money and payment of expenses, and for loss of time, as for and upon the attendance of any trial, provided also that the application made to such Court or Judge for such rule or order shall set forth the county where the witness is residing at the time, or satisfy such Judge or Court that such witness cannot be found. But the witnesses shall not be compelled to attend more than two consecutive days to be named in such order." Before this Act was passed there was no power given either to the arbitrator, or the Court or Judge, of compelling the attendance of witnesses on a reference, and it only gives power at the present time to do so where the submission is made a rule of Court (Wansell v.

Arbitrator may exclude witnesses where


Arbitrator has

power to administer oath.

Witnesses free from arrest,

When an arbitrator can refuse evidence.

Southwood, 4 M. & R. 359). It is not necessary, neither is it usual, to exclude either of the parties to a reference during the proceedings (re Haigh's Estate, 3 De G. F. & J. 157). The arbitrator may, however, at his discretion exclude persons who are going to be examined before him during the time that any of the other witnesses are giving evidence (Hewlett v. Laycock, 2 C. & P. 574). The Court will grant a habeas corpus to bring up a prisoner (either for contempt or crime) in order that he may give evidence before the arbitrator (Graham v. Glover, 25 L. J. Q. B. 10; 16 & 17 Vict. c. 30, s. 9).

The arbitrator has power to administer an oath to the witnesses, and is bound to receive and hear the evidence brought before him, so far as that evidence relates to the question which he is called upon to decide.

He must act in the same manner as a Judge would do in a like case before him in Court, and he must hear the witnesses produced on both sides; for if, without reasonable grounds, he refuse to hear one side, his award will be bad, and set aside accordingly (Sharpe v. Bickerdyke, 3 Dowl. 102). Witnesses who have been called upon to attend a reference have the same freedom from arrest, both going to and returning from the proceedings, as a witness appearing before a Court of justice (Webb v. Taylor, 13 L. J. Q. B. 24). Although an arbitrator is bound to hear all the evidence produced, yet if he is a man of special knowledge and skill, and has been appointed to the reference on that account, and in order that the parties may have the benefit of those qualities, and in the course of the reference

he refuses to call witnesses or receive evidence on the special subject before him, the Court will not on that account set aside his award (Johnson v. Cheape, 5 Dowl. 247). A lay arbitrator will generally be allowed to have a legal adviser to sit with him during the proceedings, in order to give him the necessary assistance and advice; but where an objection had been made by one of the parties to a legal arbitrator, and a lay arbitrator was appointed, the latter was not entitled to have a lawyer to sit with him (Proctor v. Williamson, 29 L. J. C. P. 157).

Lay arbitrator

can employ legal adviser.




ARBITRATORS are, as we have seen, empowered to Arbitrator can compel the attendance of witnesses, being supported dance of compel attenfor that purpose by all the authority of the High witnesses. Court of Justice. If a witness refuse to come forward and give evidence, after having been summoned to do so, and after having been offered his reasonable expenses, he is guilty of contempt of Court, and liable to the penalties attendant thereupon. Arbitrators are not by any means free agents in their treatment of witnesses, but are bound to observe the same rules as to the reception of evidence as are

Arbitrator to receive all evidence tendered.

Effect of arbitrator rejecting evidence.


should follow practice of Courts as to evidence.

observed in a Court of law. If an arbitrator misinterpret the law of evidence, or act in ignorance of it, the Court will not interfere with his decision after he has made his award (Hagger v. Baker, 14 M. & W. 9). An arbitrator should receive all the evidence tendered before him, as although he is a Judge as to the competency of the witnesses to give their evidence, as well as of the admissibility of that evidence when given, he is not competent to say whether the evidence is material or not, so that by refusing to receive it, he undertakes a grave responsibility (Johnson v. Cheape, 5 Dowl. 247).

Rejecting evidence under a mistake as to its value, is no ground for setting aside the award; and where the arbitrator, after closing the examination, refused, on the application of one of the parties, to call another meeting, although such party was in possession of fresh evidence repelling that given during the course of the proceedings, and on which the award was founded, the Court refused to interfere, on the ground that the arbitrator could exercise his own discretion as to the desirability of holding another meeting (Hemming v. Parker, 14 W. R. 328). An arbitrator will do well to follow, as far as possible, the practice of the Courts with regard to the reception of evidence; he should take such notes as to enable him to understand the facts, and to bear them and the evidence in mind. He should not accept any private information relative to the case from one of the parties to the submission, or, if he does so, should communicate it to the opposite party without delay (Harvey v. Shelton, 7 Beav. 462). It is desirable in

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