17. Notice of Motion on Appeal from Referee (1). [Title, &c., as usual.] day of Take notice that this Honourable Court will be moved on the of next [or at the expiration of days from the service of this notice], or so soon thereafter as counsel can be heard by Mr. counsel for the above-named -, on appeal from the findings and decision and judgment of, Esquire, official [or special] referee, to whom this action was referred for trial, for an order that the said findings and decision [or so much of the said findings and decision as finds and decides that -] be set aside [or varied by ], and that the judgment directed be reversed, and that judgment be entered for the for [or that a new trial be had between the parties on the grounds that (m)], and that the costs of and occasioned by this application be paid by the 18. Notice of motion to set aside Judgment Directed (0). [Title, &c., as usual.] Take notice that this Honourable Court will be moved on the day of next [or at the expiration of days after service on you of this notice], or so soon thereafter as counsel can be heard, by Mr. of counsel for the above-named for an order that the judgment directed to be entered herein by, Esquire, the official [or special] referee, (1) See Clark v. Sonnenschein, 25 Q. B. D. 226, 464; Proudfoot v. Hart, 25 Q. B. D, 42. The appeal is to the Divisional Court and not to the Court of Appeal (Glasbrook v. Owen, 7 Times L. R. 62; Gower v. Tobitt, Id. 182). There is no appeal from the decision of the Divisional Court without leave (Daglish v. Barton, [1900] 1 Q. B. 284) By Ord. LIX., r. 3, "Where a compulsory reference to arbitration has been ordered, any party to such reference may appeal from the award or certificate of the arbitrator or referee upon any question of law; and on the application of any party the Court may set aside the award on any ground on which the Court might set aside the verdict of a jury. Such appeal shall be to a Divisional Court, who shall have power to set aside the award or certificate, or to remit all or any part of the matter in dispute to the arbitrator or referee, or to make any order with respect to the award or certificate or all or any of the matters in dispute that may be just." () As to a new trial, see Ord. XXXVI., r. 52, ante, p. 838, n. (g), and Forrest v. Todd, 76 L. T. 500, where, however, neither Dyke v. Cannell, 11 Q. B. D. 180, nor Bedborough v. A. & N. Hotel Co., 50 L. T. 173, appears to have been cited. (0) Motion to set aside Judgment directed to be entered.]—By Ord. XL., r. 6, "Where at a trial by a referee he has directed that any judgment be entered, any party may move to set aside such judgment, and to enter any other judgment, on the ground that upon the finding as entered the judgment so directed is wrong: provided that in the King's Bench Division such motion shall be made to a Divisional Court.” before whom the action was tried, as appears by the certificate dated the day of, be set aside on the ground that upon the finding as entered the judgment is wrong, and that in lieu thereof judgment be entered for the or that such other order may be made as to for the Court shall appear just, and that the costs of and occasioned by this application be paid by the Dated To—, Yours, &c., P. S., Solicitor for the Solicitor for the CHAPTER III. ARBITRATION BY CONSENT (a). [As to staying proceedings when an action is brought contrary to an agreement to refer, see ante, p. 185.] 1. Order of Reference made at Chambers (b). 1. [State matters to be referred] shall be referred to the award of 2. The arbitrator shall have all the powers as to certifying and amending of a Judge of the High Court of Justice. 3. The arbitrator shall make and publish his award in writing of and concerning the matters referred, ready to be delivered to the parties in difference, or such of them as require the same (or their respective personal representatives, if either of the said parties die before the making of the award), on or before the next, or on or before such further day as the arbitrator may from time to time appoint and signify in writing signed by him and indorsed on this order. 4. The said parties shall in all things abide by and obey the award so to be made. 5. The costs of the said cause and the costs of the reference and award shall be 6. The arbitrator may (if he think fit) examine the said parties to this cause, and their respective witnesses, upon oath or affirmation. 7. The said parties shall produce before the arbitrator all books, deeds, papers, and writings in their or either of their custody or power relating to the matters in difference. (a) Arbitrations are now regulated by the Arbitration Act, 1889 (52 & 53 Vict. c. 49). By sect. 1 of that Act "A submission, unless a contrary intention is expressed therein, shall be irrevocable, except by leave of the Court or a Judge, and shall have the same effect in all respects as if it had been made an order of Court." By sect. 27,"In this Act, unless the contrary intention appears, ‘submission' means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not." (b) Form of Order.]—This form is given in R. S. C., App. K., No. 24. 8. Neither the plaintiff nor the defendant shall bring or prosecute any action against the arbitrator of or concerning the matters so to be referred. 9. If either party by affected delay or otherwise wilfully prevent the said arbitrator from making an award, he or they shall pay such costs to the other as may think reasonable and just. 10. In the event of either of the said parties disputing the validity of the said award, or moving the to set it aside, the said - shall have power to remit the matters hereby referred or any or either of them to the reconsideration of the arbitrator. 11. In the event of the arbitrator declining to act or dying before he has made his award, the said parties may, or if they cannot agree, the Master may, on application by either side, appoint a new arbitrator. 12. Unless restrained by any order of the Court or a Judge, the party or parties in whose favour the award shall be made shall be at liberty, within days after service of a copy of the award on the solicitor or agent of the other party, to sign final judgment in accordance with the award, and for all costs that he or they may be entitled to under this order, and under the award, together with the costs of the said judgment. Dated the day of 19-. 2. Order of Reference at Nisi Prius (c). In the High Court of Justice. King's Bench Division. to wit. J B. V. At a sitting held at [the Royal Courts of Justice], on, the It is ordered by the Court, by and with the consent of the parties, their counsel and solicitors, that the jury find a verdict D. for the plaintiff for the amount claimed, subject to the award or certificate, order, arbitrament, final end and determination of Esquire, barrister-at-law, who is hereby empowered to direct that judgment shall be entered for the plaintiff or the defendant as he shall think proper, and to whom this action and all matters in difference between the said parties are hereby referred, so as the said arbitrator do make and publish his award or certificate in writing of and concerning the matters hereby referred, ready to be delivered to the said parties or either of them, or if they or either of them shall be dead before the making of the said award or certificate, to their respective personal (c) The appeal from this order is to the Court of Appeal (Hoch v. Boor, 43 L. T. 425). representatives requiring the same, on or before the day of sittings next ensuing the date of this order, with liberty to the said arbitrator under his hand in writing to enlarge the time for making his said award or certificate. It is also ordered that the said arbitrator shall have all the powers as to certifying and otherwise of a Judge of the High Court of Justice. It is also ordered, by the like consent, that the said arbitrator shall have authority to hear, receive and examine evidence touching the matters hereby referred, and that the said parties shall produce before the said arbitrator all such books, deeds, papers and writings in their or either of their custody or power relating to the matters in difference, as the said arbitrator shall think fit to require. It is likewise ordered, by and with the like consent, that the costs of the action shall abide the event and determination of the said award or certificate. And the costs of the reference and award or certificate shall be in the discretion of the said arbitrator (d). It is likewise ordered that the said arbitrator may find generally for the plaintiff or for the defendant, and need not find upon any specific issues unless required to do so. The costs of any such specific issues (if found) to abide the event. It is likewise ordered, by the like consent, that the said parties do and shall on their respective parts in all things stand to, abide by, obey, perform, fulfil and keep the award or certificate, order, arbitrament, final end and determination of the said arbitrator, so to be made and published. And that neither of the said parties do or shall proceed in or prosecute any action or suit against the said arbitrator or against each other respectively for any matter relating to the arbitration or the award or certificate to be made in pursuance of this order. It is further ordered, by the like consent, that if either of the said parties shall, by affected delay or otherwise, wilfully prevent the said arbitrator from making his award or certificate, or shall not attend after reasonable notice, and without such excuse as the said arbitrator shall be satisfied with and adjudge to be reasonable, then the said arbitrator may proceed ex parte, and the parties occasioning the delay shall pay to the other such costs as the Court shall think reasonable and just. And it is ordered, by the like consent, that in the event of any application to the Court on the subject of this order, the reference, or the award, or certificate, the Court may (if it shall think fit) at any time and from time to time refer back to the said arbitrator the whole or any part of the matter of this order upon snch terms as the Court shall think proper. It is also ordered that in the event of the said arbitrator declining to act, or dying before he shall have made his award or certificate, the said (d) These are the "usual terms" as to costs, per Field, J., 2 Q. B. D. at p. 338. |