Rules of Supreme Court as to costs. Costs at discretion of arbitrator. Arbitrator should direct which party is to pay costs. Court or a Judge otherwise orders;" so that if a plaintiff recover a sum between 201. and 50l., he will only be allowed costs on the County Court scale, and in cases where an action is referred, and the costs are to abide the event, the plaintiff will only be entitled to recover the costs of the action to the same extent as he would have done, if the action had been determined by a verdict for the same amount as that found due by the arbitrator (Cowell v. Amman Colliery Co., 34 L. J. Q. B. 161). It makes no difference in this respect whether the reference is by consent or by an order of the Court or a Judge (Robertson v. Sterne, 31 L. J. C. P. 362). Where the costs are to be at the discretion of the arbitrator, "who is to ascertain the same," it is his duty before awarding to ascertain and determine the amount, otherwise the award will be bad, and cannot be rectified by the taxing master on taxation (Morgan v. Smith, 9 M. & W. 427). The arbitrator should not by his award fix his own charges, even if the costs of the reference and award are left to his discretion; but as he has the right to keep his award (as we have seen) until his charges are paid, he should direct in the award by which of the parties his costs are to be paid, and leave it to the taxing master to decide as to whether his claim is just. If the amount paid on delivery of the award is excessive, and the arbitrator refuse to refund the overcharge, the party who has had to pay it may recover in an action for money had and received Costs of second (Barnes v. Hayward, 1 H. & N. 742). Where an Effect of over charge by arbitrator. reference. award is referred back by the Court on the ground that it is defective, and the arbitrator hears fresh evidence and makes another award, the costs of the second reference will be borne equally by both parties (Blair v. Jones, 6 Ex. 701). If, however, the second award has been rendered necessary by the conduct of one of the parties to the reference, the party who is in fault will have to bear all the costs in connection with the first award (Gladwin v. Chilcote, 9 Dow. 550). Where an action and all matters in difference are referred, the arbitrator may order either party to pay the costs of the cause, but not of the reference and award, although the rule of Court or order were silent upon the question of costs (Whitehead v. Firth, 12 East, 165). Where an action in the High Court is referred, or where the reference is by an agreement that can be made a rule of Court, the arbitrator need not ascertain and award the costs, but he may leave them to be ascertained and taxed by the officer of the Court; and if an arbitrator award costs to either of the parties, and there is no express direction in the submission to that effect, they may be so taxed (Bhear v. Harradine, 21 L. J. Ex. 127). But the arbitrator has no power to order the costs to be taxed by any other person than the proper officer appointed for that purpose, as that would amount to a delegation of judicial authority, and his award would consequently be bad (Knott v. Long, 2 Stra. 1025). An arbitrator can only award costs as between Arbitrator has party and party, unless he is directed to do otherwise only power to by the order of reference; but in a reference in between party a Court of Chancery before the Judicature Acts, L. J. Mellish held, that where the costs of the and party. Arbitrator's power over costs when directed to award them. Land Clauses to costs; reference and of the suit are left to the discretion of the arbitrator, that gives him jurisdiction to give costs as between solicitor and client if he thought fit (Whitehead v. Firth, 12 East, 165; Mordue v. Palmer, 39 L. J. Ch. 746). The practice of the Chancery and Common Law Division of the High Court is, since the Judicature Acts, assimilated; and when an action is referred, and the costs of such action are to be in the discretion of the arbitrator, he has power in both divisions to give costs as between solicitor and client. Where an arbitrator, in error, awards costs as between solicitor and client, and the costs are taxed on that basis, the Court should be moved to set aside the award for the excess, not to review the taxation (Bartle v. Musgrave, 1 Dowl. N. S. 325). An arbitrator has very considerable power over costs when he is directed to award them. If the submission contain no direction as to costs, the arbitrator may award a gross sum to be paid, and the Court will not review his direction on that ground unless the amount is so excessive as to call for its action. Where the costs of the agreement and of the reference and award were to be in the discretion of the arbitrator, and to be defrayed as he should direct, and the arbitrator in his award made no mention of costs, the award was held bad (Richardson v. Worsley, 19 L. J. Ex. 317). The Land Clauses Consolidation Act, 1869 (32 & 33 Act, 1869, as Vict. c. 18, s. 1), provides that "Where any question of disputed compensation is determined by arbitration, the costs of and incidental to the arbitration and award shall, if either party so requires, be taxed and settled as between the parties by any one of the taxing masters of the Superior Courts of Law." The Railway Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20, s. 135), provides, "Except where by this or the special Act or any Act incorporated therewith it shall be otherwise provided, the costs of and attending every such arbitration to be determined by the arbitrators shall be in the discretion of the arbitrators." Act, 1859; A similar provision is contained in the Railway and Railway Companies' Companies' Arbitration Act, 1859 (22 & 23 Vict. Arbitration c. 59), s. 27 of which Act says, "Except where, and as the companies otherwise agree, the costs of and attending the arbitration and the award shall be in the discretion of the arbitrator, and the arbitrators and the umpire respectively." The Companies' Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 16), The Joint Stock Companies' Act, 1862 (25 & 26 Vict. c. 89), and other public Acts of a like character contain clauses providing for the settlement of disputes by arbitration, and direct the manner in which the costs of the reference are to be paid. and Companies' solidation Act, 1845; Clauses Con and Companies' Act, 1862. When costs can be taxed. Costs to be awarded as and party. CHAPTER XXIII. TAXATION OF COSTS. COSTS of a reference can only be taxed when the submission is made a rule of Court, and this is another reason, if one were needed, why all submissions should undergo that ordeal. Unless the arbitrator has authority to order otherwise, costs will be taxed as between party and party, and they can only be taxed between party by the proper officer of the Court. When an arbitrator directs by his award that the costs of an action are to be taxed by the proper officer, they should be taxed as they would be if a verdict had been given (Allenby v. Proudlock, 5 N. & M. 636). By rule 15, order 65, of the Rules of the Supreme Court, "Costs may be taxed on an award notwithstanding the time for setting aside the award has not elapsed." Originally this was not so, but the party in whose favour the award had been made was not entitled to have his costs taxed until the time had expired during which the unsuccessful party could have moved to set aside the award (Hobdell v. Miller, 2 Scott, N. R. 163). It is usual to give one day's notice of taxation, and such notice should be accompanied by a copy of the bill of costs. Where a verdict has been taken at a trial, and the cause has been afterwards referred, and the costs of the cause, reference, and award are to be paid by one of the parties, such costs should be taxed separately if it is intended to sign judgment |