Page:Halsbury Laws of England v1 1907.pdf/676

 Akbitration.

454 Sect.

2.

Stay of Legal Pro-

Only question in dispute one of law.

cases, be sufficient to induce the Court to refuse to stay the proceedings {y). Before the Arbitration Act, 1889, came into force, it was laid down in a number of cases that the fact that the matter at issue between the parties was merely a question of law was not a sufficient reason for refusing a stay {z), because, if the parties, instead of resorting to the ordinary Courts, agree to submit their dispute to a domestic tribunal of their own choosing, it is the prima facie duty of the Court to give effect to their agreement (a) but since an arbitrator can now be compelled to state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference, it would seem that, where the only question in dispute is a question of law, the Court would be disposed to refuse a stay, since it would be idle to remit to the arbitrator a question which the arbitrator in his turn would have to submit to the Court In some cases the fact that the submission includes but a small part of the matters which are the subject of the legal proceedings may be a sufficient reason for refusing a stay since the order to stay must of course be confined to those matters only which are within the submission, and therefore the effect of an order to stay would be that part of the dispute between the parties would be litigated in Court and part would be referred to arbitration (c). The Court may be said to have a discretion in the matter of granting or refusing a stay {d), but if the conditions necessary for granting a stay are fulfilled, and the Court is not satisfied that there is any sufficient reason why the matter should not be referred to arbitration, the Court, it is submitted, could not refuse a stay.

"When submission includes only part of matters in dispute.

Stay will not be arbitrarily refused.

Other relief unobtainable before arbitrator.



960. The Court when making an order to stay, or at any time thereafter {e), may grant any relief which would not be obtainable in the arbitration, such as the appointment of a receiver (/), or an injunction {g). The Court may, it would seem, at any time discharge or vary an order to stay

(It).

Wallis V. Hirsch (1856), 1 C. B. (N. s.) 316 Kitchen v. Turnhull (1872), 20 E. 253, 254; Russell v. Russell (1880), 14 Oh. D. 471. See also Barnes v. Youngs, [1898] 1 Ch. 414, at p. 419. Forwood & Co. v. Watney (2) Randegger v. Holmes (1866), L. E. 1 C. P. 679; (1880), 49 L. J. (Q. B.) 447; Flews v. Baker (1873), L. E. 16 Eq. 564; Cope V. Cope (1885), 52' L. T. 607. (a) milesford v. JVatson (1873), 8 Ch. App. 473, at p. 480. Re Carlisle (1890), (b) See Arbitration Act, 1889 (52 & 53 Yict. c. 49), s. 19 44 Ch. D. 200 Barnes v. Youngs, [1898] 1 Ch. 414. (c) Turnock v. Sartoris (1889), 43 Ch. D. 150; Young v. BucTcett (1882), 46 L. T. 266 but compare Ives and Barker v. Willans, [1894] 2 Ch. 478. Wickham v. Harding (1859), 28 (d) Lyon v. Johnson (1889), 40 Ch. D. 579 L. J. (ex.) 215; Barnes v. Youngs, [1898] 1 Ch. 414. (e) ZalinoffY. Hammond, [1898] 2 Ch. 92. (/) Law V. Garrett (1878), 8 Ch. D. 26; Fini v. Roncoroni, [1892] 1 Ch. 633 Compagnie du Senegal v. Smith & Co. (1883), 49 L. T. 527. 2 Ch. 486; (g) Brighton Marine Palace and Fier, Ltd. v. IVoodhouse, [1893] Willesford v. JVdtson (1873), 8 Ch. App. 473. (h) Bustros V. Lenders (1871), L. E. 6 C. P. 259, a case decided under the repealed s. 11 of the Common Law Procedure Act, 1854 (17 & 18 Yict. c. 125), {ij)



W.