Page:Halsbury Laws of England v1 1907.pdf/680

 — 458 Sect.







Aebitration.

Where

4.

the reference is to two arbitrators or an umpire, the umpire in the event of the arbitrators failing to agree, substituted for them, and has the same powers as they had (g).

Powers of

is,

Arbitrator or Umpire.

966. Where the submission is contained in a written agreement and does not express a contrary intention, the arbitrators or umpire have the following powers examine the parties and their witnesses on oath or (1) To

Statutory powers.



affirmation (li) (2) To enlarge the time for

(3)

To

direct to

making the award (i) by whom and in what manner the

whom and

costs of the reference and award shall be paid (k) (4) To state the award as to the whole or part thereof in the form of a special case for the opinion of the Court (Z) (5) To correct any clerical mistake or error in the award arising from any accidental slip or omission (m).

967. It has been said that an arbitrator may for his own guidance consult persons of expert knowledge or skill on questions arising in the course of the reference {n) but it is not advisable that he should do so except with the knowledge and consent of the

Expert advice.



parties (o). An arbitrator or

Delegation of powers.

(g) (A)

may

umpire

not delegate to another the powers

See Tmjlor v. DuUoii (1823), 1 L. J. (o. s.) (k. b.) 158. Arbitration Act, 1889 (52 & 53 Yict. c. 49), s. 7 (a), and Schedule

I. (f)

and(g-).

Any party to a submission can obtain a writ of subpmna ad testificandum or subpoena duces tecum (s, 8), but where the reference is a reference by consent out of Court a commission for the examination of witnesses abroad cannot be issued either by the arbitrators or umpire {Re Dreyfus and Paul (1893), 9 T. L. E. 358), or by the Court {Re Shaw and Bonaldson, [1892] B. 91). i (/) Arbitration Act, 1889 (52 & 53 Yict. c. 49), s. 2, Schedule I. (c), (e); and see p. 462, post. and see p. 470, post. (/.) Ibid., s. 2, Schedule I. (i)

a



Ibid., s. 7 (b) ; and see p. 466, j^ost. (m) Ibid., s. 7 (c). At common law an arbitrator or umpire after he had made his award was functus officio, and had no power to correct even a mere clerical mistake {Mordue v. Palmer (1870), 6 Ch. App. 22, and see Henfree V. Bromley (1805), 6 East, 309; Irvine v. Elnon (1806), 8 East, 54; Ward Trew v. Burton (1833), 1 Cr. & M. 533; V. Bean (1832), 3 B. & Ad. 234; Brook V. Mitchell (1840), 6 M. & W. 473, at p. 477; Bavies v. Pratt (1855), 16 C. B. 586; Be Calvert and Wyler (1899), 106 L. T. Jour. 288; Re Stringer and Riley, [1901] 1 K. B. 105, and compare Mountain v. Parr, [1899] 1 Q. B. 805). The power conferred by the statute is rigidly limited to mere clerical mistakes or errors arising from an accidental slip or omission Re Great Western Rail. Co. and see Pedler v. Hardy (1902), 18 T. L. E. 591 the Postmaster- General (1903), 19 T. L. E.- 636, and compare Re Stringer and Riley, supra. {I)

-



See Emery

v. Wase (1801), 5 Yes. 846, (1803), 8 Yes. 504, 517; HopcraftY. E. 26; Anderson v. Wallace (1835), 3 CI. St. 130 (1824), 2 Sim. Caledonian Rail. Co. v. Lockhart (1860), 3 Macq. 808 Gray v. Wilson (1865), L. E. 1 C. P. 50 ; and see Rolland v. Cassidy (1888), 13 App. Cas. 770. The arbitrator {n)

Hickman

&

&





or umpire must in any case form his own judgment on the question before him {Re Hare (1839), 6 Bing. (n. c.) 158, 162). (o) See ShcCrp v. Noivell (1848), 6 C. B. 253, where the parties agreed to a portion of the accounts between them being adjusted by a person whom they selected in lieu of the arbitrator, and Whitmore v. Smith (1861), 7 H. & N. 509.