Witnesses may be subpœna. 7. Any party to a submission may sue out a writ 55 Vict. No. 32. of subpoena ad testificandum (1), or a writ of subpœna duces tecum (2), but no person shall be compelled sunimoned by under any such writ to produce any document which he could not be compelled to produce on the trial of an action: Provided that every person whose attend- Proviso. ance is so required shall be entitled to the like conduct money and payment for expenses as upon a trial in the Court. See Rules 4 and 16. (1) If a witness be guilty of contemptuous dis- An action on the case also lies. [Maunsell v. (2) If the submission provides (expressly or by See s. 2 and fin First Schedule, p. 8, ante. Notice of demand ought to be made in writing and sufficient time for attendance and production allowed. See Rules 2 and 3. 8. The time for making an award may from time Power to to time be enlarged by order of the Court or a Judge, for making enlarge time award. 55 Vict. No. 32. whether the time for making the award has expired Power to remit award. or not. See Rule 8. When the Court will exercise the power. [See Doe d. Mayo v. Carmell; Edwards v. Davies ; 9. (1) In all cases of reference to arbitration the Court or a Judge may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrators or umpire. See Rules 13 and 14. [Sahl v. MacDonnell.] (II) Where an award is remitted, the arbitrators or umpire shall, unless the order otherwise directs, make their award within three months after the date of the order. Rule 8. : "The Court is always very loth to set aside an award where the parties have chosen their own judges if it is possible to uphold an award the Court will do so, and where there is any matter within the jurisdiction of the arbitrators left in doubt by the award the Court will send it back for reconsideration so that the rights of the parties may be determined by the judges chosen by them." [C.J. Darley in Re Trades and Industrial Hall.] The Court can exercise this power from time to time so long as the award remains defective. As a general rule the Court will remit an award on the same grounds that it would formerly set it aside. [Bradley v. Phelps; Bury v. Dunn; Hodg- 55 Vict. No. 32. kinson v. Fernie and another.] Cases in which the award has been sent back. (a) Where there has been an irregularity but no (b) Where the arbitrator has declined to exercise his (c) Where the arbitrator has been misled or has fallen (d) In cases of surprise or discovery of new and "On a motion to refer back an award, the Court Where an order is made referring back the award (e) Where it appears on the face of the award or on aside award. 10. (1) Where an arbitrator or umpire has mis- Power to set conducted himself, the Court may remove him. 55 Vict. No. 32. (II) Where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the Court may set the award aside. As to liability of arbitrator in action for carelessness, negligence or unskilfulness if acting in good faith. [Tharsis Sulphur and Copper Co., Limited, v. Loftus.] As to liability of arbitrator in an action against him for fraud, collusion, corruption or partiality. [Pappa v. Rose; Stevenson v. Watson; Turner v. Goulden; Ludbrook v. Barrett.] Every man who enters on a submission is at liberty to choose whom he thinks best for his arbitrator; however, the Court will exercise the censorship of inquiring into his conduct, and will remove him if his expressions or conduct prove him unfit for the honest discharge of his duty. The arbitrator should endeavour to arrive at his conclusion upon the same rules and principles as the tribunal for which he is substituted. [Per Turner, L.J., in Haigh v. Haigh.] Corruption, dishonesty, secret interest, perverseness, incapacity, irregularity or partiality will call for the action of the Court. [Malmesbury Ry. Co. v. Budd; Beddow v. Beddow.] When the award may be set aside. As to what misconduct of arbitrator or umpire has been held sufficient to have award set aside. [Parker v. Burroughs; Earl v. Stocker; In re Convella and Volkart (1888); Wright v. Howson, (1888).] (a) Moral misconduct, corruption, corrupt motive, or fraud. [Moseley v. Simpson.] (b) Judicial or legal misconduct, i.e., where the arbi- 55 Vict. No. 32. trator has acted contrary to natural justice, e.g., proceeded in the absence of the parties, or refused to hear witnesses. [In re Plews; Gladwin v. Chilcote; Scott v. Van Sandan; Haigh v. Haigh; Haggen v. Baker; Re Mount Kembla Coal and Oil Co., Eady's arbitration.] (c) Where the arbitrator has delegated his authority. [Little v. Newton.] (d) Failed to exercise his judgment. [Whitmore v. Smith.] (e) Award made by some in the absence of and without consulting the others. [Re Beck v. Jackson.] If an umpire be called in, in the absence of any express condition in the submission, it will be his duty to adjudicate on the whole submission. "If the arbitrators do not agree on all points, then by intendment of law the umpire they call in must decide on all." [Coleridge, J., in Wicks v. Cox.] An award by umpire and one arbitrator set aside. [In re Templeman & Reed.] When an award has been improperly procured. An award will be set aside or remitted back on the following grounds : (a) When it exceeds the submission. [Hutchinson v. Easton, Brett, M.R., p. 867; Sinidino v. Kitchen. (b) When it does not extend to all matters referred. |