part thereof, and may award costs to be paid as between solicitor and client " 8 (d).

The first part of this section which calls for comment is the phrase "costs of the reference and award." By these words the tribunal is empowered to assess the whole of the costs incurred in the arbitration, including its own fees. (We have already noticed (e) the position of the parties in regard to the amounts charged by lay judges for their services; the next section of this Chapter will throw further light on the subject.) Next, it is noticeable that the lay judges are not bound to award costs on the solicitorand-client scale-they are merely free to do so; hence the advisability of specific mention being made of the fact in the submission, if the parties have agreed that that scale shall be allowed. For here again the lay tribunal is at liberty to direct that the costs shall be taxed in the High Court, and "as between the parties to the submission, the amount of the costs of the award, if the costs are [so taxed], is the amount allowed by the Taxing Master on taxation, and the sum [so allowed] is all that can be recovered by one party from the other when [that other] has by the award been ordered to pay the costs of the awardo. . . . The result is that, in order to take up the award, the successful party may be compelled to pay a sum in excess of that which the Master may allow on taxation of the costs as

(d) The term "costs as between solicitor and client" is used to signify several distinct methods of taxation. But it is here used in contrast to ' costs as between party and party." In this sense the former means a taxation on a more generous scale than is normally allowed, i.e. one in which more items of expenditure are made recoverable. But it does not extend to a complete indemnity; if that is desired, it should be mentioned specifically by the parties in their submission or by the lay judges in their award, as the case may be.

(e) See p. 103.

between the parties, and yet, [if the sum so paid is not exorbitant,] (ƒ) have no remedy10 to recover such excess” (g).

Again, when arbitrators have disagreed and the duty of making an award has devolved on the umpire (if there is one), the fees of the arbitrators as well as that of the umpire are included in the term costs of the award " 11 and the umpire will be justified in retaining the award until all the fees are tendered to him.

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Here, as always, the rule as to finality (h) must not be infringed. Thus, where an umpire (a commercial man) dealt in his award with a number of specified items of expense (i.e. the lay judges' fees, the cost of the shorthand notes, the hire of the room in which the hearing took place, and the legal expenses of the preparation of the award), but failed to make an award as to the general costs of the reference, the award was remitted for him to exercise his discretion as to the matter omitted12.

Lastly, this section of the Schedule (i) does not give a lay judge power to order security for costs or a stay of the arbitration proceedings pending the production of a sum of money by a claimant residing abroad as security for the costs of the reference13. (But of course it is open to the parties to agree that he shall be given such power11; and, further, the Court has a discretion (k) to order such security as the price of its making an appointment of a lay judge under section 5 of the Act15, which discretion apparently extends to a case in which the applicant's place of residence is in the Irish Free State16).

(f) See p. 155.

(g) Russell on Arbitration and Award, 10th Edn., p. 485.

(h) See p. 108.

(i) The same applies to section (f) of the Schedule. See pp. 83 and 61. (k) See also p. 64.

When an award is remitted to the lay tribunal by the Court for further consideration and nothing is said about the costs in the order, any powers of dealing with them which the tribunal had been given by the submission will be extended so as to cover the second hearing (if any is necessary) and the new award17.

But not only has the High Court power (1) to direct how the costs of the argument on an award in the form of a special case are to be borne18, but the Court of Appeal has power to deal with the costs of an appeal against the High Court's judgment in such a case19. Further, it has been observed that lay judges should not attempt to interfere with the discretion which the Courts have in this matter, e.g. by directing in the award that the costs of the argument of the special case shall be paid by one party or the other according as the Court answers the questions put to it in the affirmative or the negative20.

The Lay Judge's Remuneration. The underlying principle governing the fixing of the remuneration of lay judges is that the judges are themselves free to assess the amounts to be paid to them (m) and to incorporate such assessment in their award, unless a contrary intention is expressed in the submission. Moreover, they have a lien on their award21 which can only be discharged by payment to them of their remuneration so assessed; hence the common

(1) This position should be contrasted with that where a special case is stated during the arbitration proceedings under section 19 of the Arbitration Act. See p. 145.

(m) The question is often simplified by the existence of a code of rules applying to arbitrations conducted before the standing Arbitral Tribunal of a given Trade Association, in which the tribunal's fees are fixed.

The fees payable to official referees to whom disputes are referred under a submission (see p. 34) are laid down in the Orders as to Supreme Court Fees, 1884, Nos. 88-91, and 1903, Schedule I.

practice of their retaining possession of their award until one of the parties tenders its costs, a practice which has been approved by the Courts 22. From this it follows that the parties to a pending arbitration will be well advised to agree with the tribunal the fees which it is to receive and to agree them before the proceedings begin. For the only way to obtain possession of the award is to pay the fee, and the only way to recover any part of the fee is to bring an action against the lay judges and satisfy the Court that the charges made were exorbitant; but even this is impossible when the judges have included their charges in the award itself, the sole remedy in such a case being to obtain an order of the Court setting aside the award 23 (or, where it is severable, that part of it which deals with the fees complained of).

On the other hand, it often happens that the only party who has the means with which to pay for the award refuses to take it up, being convinced that the tribunal has come to a decision which is unfavourable to him. Therefore, where there is any doubt as to the ultimate payment by the parties or by one of them of the lay judges' fees, the judges will be well advised either to enter into a contract in writing with the parties concerning their payment or at least to arrange for the irrevocable payment of a sum at the opening of the hearing; for, although it is now certain that a commercial man acting as arbitrator or umpire24 (and probably a professional man also)25 can recover a reasonable fee by action even on an implied promise to pay him for his services when he has executed his award, there is no such certainty when the award has never been made (as would happen if the parties, even after a prolonged hearing, settled the dispute or allowed it to fall into abeyance). Moreover, a stipulation concerning the lay

judges' fees which is included in the submission is only evidence of a promise by the parties to remunerate them and cannot be the subject of an action by them against the parties 26.

The Courts have recognized the reasonableness of a commercial man employing a lawyer to draft his award and adding to his own fee the expense of so doing, so long as the sum total is reasonable under the circumstances 27.

The "Taxation" of Costs. We have already noticed in what circumstances an official of the High Court (usually the Taxing Master) may be called upon to settle the amount to be paid by way of costs in an arbitration, and that the delegation of this duty (in those circumstances) by a lay judge never invalidates the award on the ground of lack of finality 28 (n). In such an event it is the duty of the official to follow the directions given in the award as to the scale on which the costs are to be taxed; he will not allow "solicitor and client" costs unless a specific direction to that effect is given by the lay judges.

If one of the parties notifies the taxing authority that he objects to the fee demanded by a lay judge as his remuneration, the authority can disallow the full figure charged", but in so doing he must give a judicial decision on the evidence of unreasonableness which is tendered to him and must not act upon a personal view of his own as to what is fair30; but such a decision does not bind the lay judge concerned, who will usually have received the fee already, and from whom it can only be recovered by action under the rule against exorbitant charges (unless, of course, a contract for a fixed remuneration was made between him and the parties, which contract he broke by refusing

(n) See p. 96.