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CHAPTER XX.

AWARD BAD IN PART.

AN arbitrator in giving his award may, from a mistaken idea of his power, exceed his authority, and give his decision on certain points on which such decision is not required; or he may, on the other hand, exceed the authority conferred upon him by the submission. And although in the olden time an award that was bad in part was considered to be wholly void, it is now a fixed principle of law that an award bad in part is only void so far as that part is concerned, and that so far as the other part is concerned, it stands good in all cases where the two parts are separable, and can be divided one from the other. If such division cannot be made, the award is bad in toto (Duke of Buccleugh v. Metropolitan Board of Works, L. R. 5 Ex. 229). The difficulty, in all these cases of imperfect awards, is to be able to separate the bad part from the good; and this is the difficulty which the Courts have acknowledged to exist, on account of the award usually mixing up the two parts. In the case of Tomlin v. Mayor of Fordwich, reported in 5 A. & E. 152, Chief Justice Denman said:--"I always find a difficulty in separating the good part of an award from the bad. The arbitrator probably frames one part with a view to the other, and each may be varied by the view which he takes of the whole." We have said, and it cannot be too often

where arbitra

tor exceeds

his authority.

repeated, that an award must not exceed the submission; if, therefore, an arbitrator import into his award matters not included in the document appointing him, he exceeds his authority, and his award is Effect of award bad pro tanto. The most frequent causes that render an award bad in part are, this ignorance of the arbitrator as to his authority, and his not following out the terms of the submission in duly awarding upon all the points submitted to him. Where an arbitrator exceeds his authority in going beyond the terms of the submission, in order to direct the mode in which any of the matters awarded are to be done, that part of the award may be rejected as a nullity (Aitcheson v. Cargey, 2 Bing. 199).

Arbitrator cannot

reserve right of deciding future disputes.

Where, amongst other directions given by the award, an arbitrator ordered certain works to be performed, and extended the time for making his final award so as to be able to decide future disputes, the award was held to be bad so far as that part was concerned in which the arbitrator reserved to himself the power of deciding future disputes. Such power he did not possess under the submission, and therefore his reservation of it was an act of surplusage, which, although it did not affect the valid part of the award, was beyond the authority of the arbitrator, and consequently bad to that extent (Manser v. Heaver, 3 B. & Ad. 295).

Where an arbitrator reserved to himself power to appoint a lawyer to advise with him as to the proper form of certain conveyances which he had ordered to be prepared, it was held that he had exceeded his authority, and had no power to make any such ap

pointment, and that that part of the award being inseparable from the rest, the whole was bad (In re Tandy, 9 Dowl. 1044). Where, again, an arbitrator awards costs, and the submission gives him no power over costs, that part of his award is capable of being separated from the rest, and consequently would be treated as void, without affecting the validity of the other parts of the award (Aitcheson v. Cargey, 13 Price, 639). And where an arbitrator orders mutual releases, on payment of a sum of money over which he has jurisdiction, and also of a sum of money over which he has none, the former part of the award will be good, the latter void (Kendrick v. Davies, 5 Dowl. 693). Where an arbitrator to whom a cause was referred by rule of Court, but without power to award a verdict, awarded as follows :—' "I award and direct that a verdict in this cause be finally entered for the plaintiffs with 2841. 12s. damages "-the Court held that he had exceeded his jurisdiction in directing the entry of a verdict, and that as the award was incapable of separation, being comprised in a single paragraph, it was bad altogether (Jackson v. Clarke, McLel. & Y. 200). If an arbitrator award costs in error when he has no power to do so, the award is not thereby invalidated, but it will be void only as to that part by which such costs are awarded (Roberts v. Eberhardt, 28 L. J. C. P. 74). Where the arbitrators awarded the plaintiff to pay his own costs of the cause and reference, and such costs to be taxed as between solicitor and client, and that the defendant should pay 50l. towards the said costs, the Court held that the arbitrators had exceeded their authority

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Where the consideration for award is uncertain,

and where it is bad.

in awarding costs as between solicitor and client, and the direction to tax such costs was so mixed up with the rest of the award as to be inseparable from it, and consequently the award was rejected as bad (Seckham v. Babb, 8 Dowl. 167).

Where the con

sideration for the thing awarded to the other side is uncertain, the award is void. Where an arbitrator awarded that A. should pay B. 25l., and that B. should pay A. for certain task work and day work, and that each party should grant a release to the other, the award was held bad, on the ground of the uncertainty of the price to be paid by B. as a consideration for the work awarded to be done, which price should have been fixed by the arbitrator (Pope v. Brett, 2 Saund. 292). Where the consideration for the thing awarded is bad, the award will be the same. If an arbitrator decide on matters outside his authority, and by so doing affect his authority within the submission, the whole award will be set aside (re Marshall and Dresser, 3 Q. B. 878).

CHAPTER XXI.

COSTS OF AN AWARD.

ALTHOUGH arbitration is a more direct and less inconvenient way of settling disputes than an action at law, there are nevertheless certain costs in connection

therewith, that have to be incurred and also liquidated

before the award is taken up.

The arbitrator's power Power of

costs.

over costs is regulated by the submission, which arbitrator over either limits that power, or is silent on the subject. When there is nothing said about costs, and if there is no cause in Court to be referred, the arbitrator has no power to award them. The costs of an arbitration

may shortly be divided into costs of the cause, costs

cause.

of the reference, and costs of the award. The costs Costs of the of the cause are the costs incurred up to the time of the submission, as well as the costs of the order of reference, including the making such reference a rule of Court, and the subsequent proceedings in the matter up to and including the making of the award, and any after proceedings. The costs of witnesses who are present at the trial before reference, with the intention of giving their evidence when called upon, are likewise costs of the cause.

reference.

The costs of the reference are the expenses in- Costs of the curred by all parties to the reference, whether in respect to matters in the cause or matters out of it, and include the costs of attendance of witnesses examined before the arbitrator, to prove the issues in a cause, and the charges of the arbitrator (Brown v. Nelson, 13 M. & W. 397). The costs of an accountant employed by the arbitrator to examine the books of the defendant, and also the attendance of the plaintiff's solicitor with the accountant, are costs of the reference (Hawkins v. Rigby, 29 L. J. C. P. 228).

award.

The costs of the award are the amount of the Costs of the arbitrator's charges, and are deemed part of the costs