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usual to order in the award that if either of the parties pay all the arbitrator's charges, for the purpose of enabling him to take up the award, then in such a case the other party shall repay him half the amount (Marsack v. Webber, 6 H. & N. 1).
In a reference where the costs of the reference and award were to be "in the discretion of the arbitrators, or of any two of them, who shall by their award order and direct by whom, to whom, and in what proportions and manner the same shall be paid," the two arbitrators awarded that the three parties, A., B. and C. should pay the costs of the award, and the compensation to the arbitrator in equal proportions. The award was held good, though it did not mention or direct in what manner the said costs were to be paid, or by whom, or to whom; but it sufficiently indicated that each of the parties should pay a third of the whole amount (re Young, 22 L. J. C. P. 160). The arbi- Arbitrator trator has no jurisdiction to fix his own fee by the his own award, although if he do so, it will not invalidate the charges. award. The proper course for him to follow, is to direct which of the parties to the reference are to pay the charges of the award, without naming any specified sum. Before the parties take up the award, the arbitrator notifies the amount of his costs, and can refuse to give up the award until they are paid. An arbitrator cannot bring an action to recover his charges; he has, however, a lien upon the award, and also upon the submission (Roberts v. Eberhardt, 28 L. J. C. P. 74).
must not fix
The word 66 costs
includes costs of whole event.
COSTS OF THE CAUSE.
We have in the previous Chapter frequently made use of the expression "costs to abide the event," and it is necessary to inquire as to the extent of the arbitrator's power to award costs when such an expression occurs. The submission usually provides "that costs shall abide the event," and thereby takes away the arbitrator's discretion with regard to awarding them. If the submission only provides that
'the costs are to abide the event of the award, and is silent as to what costs, the word costs applies to the costs of the whole event, including the reference and the cause. When a reference is by order of the Court or a Judge, and the costs are to abide the event, the arbitrator in that case has no power over them, and if he fixes the amount of such costs in his award, or gives any direction as to the amount, or mode of payment, such direction will be treated as surplusage, but it will not otherwise interfere with the validity of the award (Cockburn v. Newton, 9 What are costs Dowl. 676). When the costs of the cause only are to abide the event of the award, the expression there is taken to mean the costs of the action, and not the whole costs including the reference and award. Where the costs both of the cause and reference are to abide the event, that appears to mean the general event of the reference, and unless all the issues are
awarded in favour of one of the parties, each party will have to pay his own costs (Boodle v. Davies, 3 A. & E. 200). It is somewhat difficult at times for the Court to decide as to the meaning of the words "the costs of the cause shall abide the event of the award." In Cooper v. Pegg, reported in 24 L. J. C. P. 167, the judges declined to give an opinion as to the effect of such an agreement. L. J. Jervis in giving judgment on this case said, "what may be the effect of the agreement that costs of the suit are to abide the event of the award I do not say." Crowder, J., said, "I give no opinion as to the effect of the agreement that the costs are to abide by the event of the award upon the present finding," which was the finding of the arbitrator in the cause. In a case where the claim of the plaintiff, the counterclaim of the defendant, and all matters in difference were referred to an arbitrator, by an order of reference containing a general clause to the effect that costs were to abide the event, and the arbitrator simply awarded a small balance to the defendant. L. J. Bramwell said that as it was difficult to get at the meaning of what was the event of the award, he was of opinion that the "Event" word event ought to be construed distributively, that of each issue is, it must be read as though the word events ,, referred. had been used; and the award was remitted back to the arbitrator to find specific issues, so as to enable the taxing-master to tax the costs of each issue respectively (Ellis v. Desilva, 6 Q. B. D. 521). When Arbitrator has the submission is silent as to the costs of an action, costs when it is in the power of the arbitrator to order either submission is party to pay them, although no express authority is
no power over
silent respecting them.
Award to be specific as to each issue referred.
Arbitrator should not award gross
given to him on the subject, either by the rule or order of reference; but if either the rule, or order of reference direct that the costs are to abide the event, the arbitrator cannot exercise any discretion in the matter, either in awarding them or fixing the amount, and need not even notice them; but in that case the costs follow, and are taxed in the same way as though the award were the verdict of a jury (Kendrick v. Davies, 5 Dowl. 693). Where a cause and all matters in difference between the parties were referred, and the costs of the cause were to abide the event, and the costs of the reference and award were to be in the discretion of the arbitrator, the arbitrator found for the plaintiff as to the cause, for the sum of 2591. 1s., and as to all the matters in difference, for the defendant for the sum of 242l. 13s. 10d.; and it was held that, although the arbitrator had decided to a certain extent in favour of each party, the event of the reference was such as to entitle the plaintiff to his costs of the cause (Stephens v. Chapman, L. R. 6 Ex. 213).
It will be seen from the cases that the award should be specific as to the issues before the arbitrator, and that his duty is to give his award upon each specific issue, so as to enable his intention to be carried into effect without injustice to either party. Where an arbitrator awards a gross sum to be paid to one of the parties by the other, it is not a sufficient direction, as it does not show whether such sum is to be paid on account of costs in the action, or in other matters in difference, so that it is impossible to say what is the event that the costs are to abide (Nicholson v. Sykes, 9 Ex. 357). Where a cause and all
matters in difference, including a suit in equity, were referred, and the costs were to abide the event, the arbitrator found on some of the issues in the cause for the plaintiffs, and awarded them damages; but as to the suit in equity, or rather as to so much of it as affected the plaintiffs, he restrained them from proceeding with it, and also awarded that they should not take action to recover the damages awarded them by the said arbitrator, nor the costs; it was held that the event in this case meant the ultimate and general event of the whole cause, and not merely that the event of each suit should as regarded that suit abide the event (Reeves v. Macgregor, 9 A. & E. 576).
By the County Court Act it is enacted that "If in any action commenced after the passing of this Act in any of Her Majesty's Superior Courts of Record, the plaintiff shall recover a sum less than 207. if the action is founded on contract, or 107. if founded on tort, whether by verdict, judgment by default, or on demurrer, or otherwise, he shall not be entitled to any costs of suit, unless the Judge certify on the record that there was sufficient reason for bringing such action in such Superior Court, or unless the Court or a Judge at Chambers shall by rule or order allow such costs." The rules of the Supreme Court, 1883, extend the amount recovered in an action on contract, and provide by Order 65, r. 12, that "In actions founded on contract in which the plaintiff recovers by judgment, or otherwise, a sum (exclusive of costs) not exceeding 50l., he shall be entitled to no more costs than he would have been entitled to, had he brought his action in a County Court, unless the
30 & 31 Vict. c. 142, s. 5, as to costs.