Page:Halsbury Laws of England v1 1907.pdf/681

 —— Part

References by Consent out of Court.

I.

their submission conferred on him (p). ^Yhere the reference is to several arbitrators they may not even delegate their powers to one another (q).

which the parties have by

459 Sect.

4.

.

Powers of Arbitrator

arbitrator or umpire may, and frequently does, obtain legal or Umpire. assistance in the framing of his award (?•). Legal assist-

An

ance.

Sect.

5.

Liability of an Arbitrator or

Umpire.

968. An arbitrator or umpire is not liable for want of skill or care (s). It has been said that an arbitrator or umpire guilty of fraud would be liable to an action for damages at the suit of the party, who had by reason of his fraud suffered loss {t), but there is not any reported case in which such an action was brought successfully. No misconduct falling short of fraud would, it seems, render an arbitrator or umpire liable to an action. Where an award is set aside by the Court on the ground of misconduct, the arbitrator or umpire would, it is conceived, be liable to an action for the return of the fees which had been paid to him, as money paid for a consideration which had failed {u). Sect.

6.

No liability for negligence not amounting to fraud.

Misconduct.

Removal of an Arbitrator or Umpire,

969. At common law the Court had no jurisdiction to remove an Removal for umpire {x) but where an arbitrator or umpire has misconduct, misconducted himself power ta remove him has been conferred upon the Court by statute {y) An arbitrator or umpire who has made his award {^functus officio, Remedy of and cannot be removed. Where, therefore, an arbitrator or umpire ^^^^^^^^ who has made his award is found to have misconducted himself, the proper remedy is to apply to the Court to set the award arbitrator or



.

aside {£). Applications

(a)

removal

for

of

an arbitrator or umpire are

{p) Lingood v. Eade (1742), 2 Atk. 501, 504; and compare E'mer?/ v. Wase (1801), 5 Yes. at p. 848. {q) Little Y. Newton (1841), 9 Dowl. 437; and see Whitmore v. Smith (1861), 7 H. & N. 509, and LJads v. Williams (1854), 4 De G. M. & G. 674.

Fetherstone v. Cooper (1803), 9 Yes. 67 Baker v. Cotterill (1849), 18 L. J. 345; ThrelfallY. Fanshaiue (1850), 19 L. J. (q. B.) 334; Galloivay v. Keyiuorth (1854), 15 0. B. 228 Be (Jnderiuood and Bedford etc. Bail. Co. and see Dobson and Sutton v. Groves (1844), 6 Q. B. (1861), 11 C. B. (N. s.) 442 637, 647, and Be Colhjer-Bristoiu & Co., [1901] 2 K. B. 839. (s) See Pappa v. Bose (1871), L. E. 7 0. P. 32, and, on appeal, 525 Tharsis Sidphur etc. Co. v. Loftus (1872), L. E. 8 C. P. 1 Stevenson v. Watson (1879), 4 C. P. D. 148 Chambers v. Gotdthorpe, [1901] 1 K. B. 624. Ludbrook v. Barrett (0 See Stevenson v. Watson (1879), 4 C. P. D. 148, 161 (1877), 46 L. J. (c. P.) 798; Wills v. Maccarmick (1762), 2 Wils. 148; and compare Tullis v. Jacson, [1892] 3 Oh. 441. (m) Be Hall and Hinds (1841), 2 Man. & Gr. 847, 853. As to the cases in which an arbitrator or umpire is liable to an action for the return of excessive fees, see p. 472, post. ipc) At common law the authority of an arbitrator or umpire was revocable by any party to the submission at any time before the award was made (see and therefore there was no need for any such jurisdiction. p. 448, ante) {ij) Arbitration Act, 1889 (52 & 53 Yict. c. 49), s. 11 (1). (z) Ibid., s. II (2). (a) An application for removal of an arbitrator or umpire under a submission by consent out of Court is made by an originating notice of motion. It cannot (r)

(q.



B.)