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CHAP. V.

Control of

court over proceedings notwithstanding order to stay.

Costs of the action.

Jurisdiction of courts ousted by statute.

Though this decision was disapproved in the Exchequer (Daunt v. Lazard, 27 L. J., Ex. 399), it has since been followed in the Common Pleas. (Seligmann v. Le Boutillier, L. R., 1 C. P. 681.)

Notwithstanding an order to stay proceedings, the court has still jurisdiction over the matter, and the order may be varied at any time, even after the award is made. (Bustros v. Lenders, 40 L. J., C. P. 193; L. R., 6 C. P. 259.) In the Chancery Division, where the order always reserves liberty to apply, this means a general liberty to apply at any time, either before or after the award. (Compagnie du Senegal v. Smith, 49 L. T. 527; 32 W. R. 111.)

The court may under section 20 of the Arbitration Act, 1889, deal with the costs of the action in an order to stay. If the order makes no provision as to costs, the court has nevertheless power at any time, not limited to the time of making the award, to deal with the costs of the action. (Bustros v. Lenders, supra.)

Many Acts of Parliament contain arbitration clauses ousting the courts of their jurisdiction. An agreement to refer under section 2 of the Railway Companies Arbitration Act, 1859 (22 & 23 Vict. c. 59), is, under section 26, obligatory upon and ousts the jurisdiction of the courts (Watford Rail. Co. v. London and North-Western Rail. Co., 38 L. J., Ch. 449; L. R., 8 Eq. 231), but only if one of the companies insists upon a reference. (London, Chatham and Dover Rail. Co. v. South-Eastern Rail. Co., 40 Ch. D. 100; 58 L. J., Ch. 75; and see Wolverhampton, &c. Rail. Co. v. London and North-Western Rail. Co., 43 L. J., Ch. 131; L. R., 16 Eq. 433; Llanelly Rail. Co. v. Same, 42 L. J., Ch. 884; 45 L. J., Ch. 539; L. R., 7 H. L. 550.)

Where a railway Act confirming a provisional order provided that certain differences arising under the Act should be determined by an arbitrator to be appointed

by the Board of Trade it was held that the jurisdiction of the court was ousted because, under the statute, the arbitrator was the only tribunal for the settlement of the differences. (London and North-Western Rail. Co. v. Donellan [1898] 2 Q. B. 7; Midland Rail. Co. v. Loseby [1899] A. C. 133.) But even in such a case there must be a "difference" existing at the time the action was commenced, or the court and not the arbitrator has jurisdiction. (London and North-Western Rail. Co. v. Billington [1899] A.C. 79.)

CHAP. V.

SECT. 2.-Submission by Order of Reference by Consent.

66

The Arbitration Act, 1889, by section 14, enacts that Reference of 'In any cause or matter (other than a criminal pro- 53 Vict. c. 49,

action-52 &

ceeding by the Crown), if all the parties interested who s. 14.
are not under disability consent, the court or a judge
may at any time order the whole cause or matter to be
tried before a special referee or arbitrator, or before an
official referee or officer of the court."

court to refer

by consent.

Apart from this statutory provision, the High Court, Inherent by virtue of its inherent authority over an action which power of is pending, may at any stage of the proceedings, with the consent of all the parties, make an order referring the action to arbitration. (Darlington Wagon Co. v. Harding and Trouville, &c. Co. [1891] 1 Q. B. 245; 60 L. J., Q. B. 110.)

The order of reference may be made in chambers at any time before the action is called on for trial. When the reference is made at the trial the order will be drawn up by the associate if at Nisi Prius, and by the registrar if in the Chancery Division.

A judge at Nisi Prius is a full court with a power to refer. (Hoch v. Boor, 49 L. J., C. P. 665; 43 L. T. 425.)

CHAP. V.

Such references only when an action pending.

When action remains in

court not

reference.

If no action be pending, the courts have no jurisdiction over the matters, and the parties cannot refer by an order of court (R. v. Hardey, 14 Q. B. 529; 19 L. J., Q. B. 196); but if there be an action pending, any other matter in difference dehors the cause may be comprehended in the order of reference. (Bonner v. Charlton, 5 East, 139; Hall v. Brand, 53 L. J., Q. B. 19; 49 L. T. 492.) An order of reference by consent which includes matters in difference other than those in the action is not an order under the Arbitration Act, 1889, but owes its validity to the consent of the parties, and the award is final and cannot be reviewed by the court in the manner applicable to awards under an order of reference of an action alone. (Darlington Wagon Co. v. Harding [1891] 1 Q. B. 245.) A person not a party to the action may, by consent, be made a party to the reference, and will be bound by it and cannot retract it. (Williams v. Lewis, 7 E. &. B. 928; Rogers v. Stanton, 7 Taunt. 575, n.)

The effect of the reference of an action and other matters in difference, would seem to be to put an end to withstanding the action, as an action pending in the court (Hall v. Brand, supra; Penrice v. Williams, 52 L. J., Ch. 593; 23 Ch. D. 353; Dick v. Milligan, 2 Ves. jun. 24; Wade v. Simeon, 13 M. & W. 650), except for the purpose of entering judgment pursuant to power expressly reserved. It is otherwise where the order of reference is of the action only, for in such a case the action remains in court. (Macalpine v. Calder [1893] 1 Q. B. 545; 62 L. J., Q. B. 607.)

Reference on the "usual terms."

A reference is often agreed to be made on "the usual terms." These are well-known terms, which are embodied in the form given by R. S. C. App. K., No. 24. If it is necessary, such other terms, not included in the printed form, as may be agreed upon, are added.

CHAP. V.

Order should

arbitrator

To prevent the necessity for an award being remitted through the arbitrator's omission to decide each issue separately, where costs abide the event, a clause is relieve the often inserted that it shall be sufficient for the arbitrator from deciding to find in the cause generally, unless either party shall separately, request him to decide some particular issues. (Morgan v. Thomas, 9 Jur. 92.)

issues

certify.

The order to refer may, but need not, contain a clause and give to stay proceedings in the action; and if the award is likely to be for a less sum than sufficient to carry costs under the County Courts Act, or to be such as, if the cause had been tried, would require the certificate of the judge to give the plaintiff costs, power should be given to the arbitrator to certify in the same manner as a judge might have done.

The court or a judge shall, as to references under order of the court or a judge, have all the powers which are by this Act conferred on the court or a judge as to references by consent out of court. (Arbitration Act, 1889, s. 16.)

Court same powers as in

reference out

of court.

Power of

arbitrator under such

In all cases of reference to an arbitrator under an order of the court or a judge, in any cause or matter, the arbitrator shall be deemed to be an officer of the court, reference. and shall have such authority, and shall conduct the reference in such manner, as may be prescribed by the rules of court, and subject thereto as the court or a judge may direct. (Arbitration Act, 1889, s. 15; Palmer v. Hardwick, 63 L. T. 302.)

The R. S. C. Order XXXVI., rules 48 to 55b, confer a variety of powers upon referees, and by rule 55c the provisions of rules 48 to 55 and of rule 55b of Order XXXVI. shall apply, where any cause or matter, or any question or issue of fact therein, is referred to an arbitrator. These are dealt with in detail in subsequent parts of the work.

The judge of a county court may, with the consent of In the county

court.

CHAP. V.

both parties, at any time after an action has been commenced, in all cases within the ordinary jurisdiction of the court, and in cases in which by agreement under section 64 of the County Courts Act, 1888, the parties have consented that the court shall have jurisdiction, order the action, with or without other matters, within the jurisdiction, in dispute between the parties, to be referred to arbitration, in such manner, and on such terms as he shall think reasonable and just. The reference is not revocable except by consent of the judge. The award is to be entered as the judgment in the action. But the judge may, if he think fit, on application to him at the first court held after the expiration of one week after the entry of such award, set aside the award, or with the consent of the parties revoke the reference or order another reference. (51 & 52 Vict. c. 43, s. 104, C. C. R., 1903, Order XX.) There is no appeal from the refusal of the judge to set aside an award

in an action referred by him.

D. 235; 47 L. J., Ex. 760.)

(Mayer v. Farmer, 3 Ex.

Compulsory reference by statute.

SECT. 3.-Compulsory Reference.

By the common law of England there is no power of compelling persons to refer. For obvious reasons of public policy the C. L. P. Act, 1854, introduced provisions for the compulsory reference of actions where the disputes were regarding mere matters of account.

This power of compulsory reference was extended by the Judicature Act, 1873 (36 & 37 Vict. c. 66, ss. 56, 57), and by the Judicature Act, 1884 (47 & 48 Vict. c. 61, ss. 9, 10).

These special provisions have all been repealed and replaced by sections 13 and 14 of the Arbitration Act, 1889. Section 13, so far as at present material, is as

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