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References by Consent out of Court.

465

Sect. 9. should in the special case set out the facts as found by him affirmaand not in the alternative, and then submit the questions of Special Case fo^ Opinion law on which the opinion of the Court is sought (?•).

tively,

of Court.

the arbitrator or umpire be requested by a party to the reference to state a special case for the opinion of the Court and refuses to do so, application can be made to the Court for an order directing him to state in the form of a special case the question or questions of law on which the opinion of the Court is desired. The application, which is usually brought in the King's Bench Division, is made by an originating summons returnable before a Master, fi-om whom there is the ordinary right of appeal to the judge in chambers. The application is not a " matter of practice and procedure " within the meaning of the Judicature Act, 1894, s. 1 (4), and an appeal from the decision of the judge in chambers lies in the first instance, therefore, to the Divisional Court and not to the Court of Appeal. From the Divisional Court an appeal lies to the Court of Appeal (s). An order made on such an application is an interlocutory order " (t) the appeal must therefore be brought within fourteen days from the date of the decision of the Divisional Court, and the notice of appeal should The costs of an application for an order be a four days' notice (u). directing the statement of a special case are in the discretion of the Court {x). The power of compelling the arbitrator or umpire to state a special case was conferred by the Arbitration Act, 1889, s. 19. Before that Act the Court could, however, in certain cases, indirectly compel the statement of a special case. A party to a reference who feared that the arbitrator was going to give an erroneous decision in matter of law could apply to the Court for leave to revoke his submission, and on such an application being made the Court would in a proper case give leave to revoke the submission unless an undertaking was given that the arbitrator would state his award in the form of a special case for the opinion of the Court, setting out the questions of law which the applicant desired to submit to the decision of the Court (?/).

977.

If

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to^compei°^ statement of special case,



978. The Court

Mode of o^tammg special case

where sub-

umpire to state a Principles on the applicant has in the first instance which order requested him to state a case and the request has been refused, and case^granted. (2) the question of law on which the opinion of the Court is desired is material to the issues between the parties, and, having regard to all the circumstances of the case, is such as should be determined will not direct the arbitrator or

special case unless

(1)

(r) North and South Western Junction Bail. Co. v. Assessment Committee of Brentford Union (1888), 13 App. Cas. 592. The Court will not give directions to an arbitrator as to how he should find the facts. See also Ferguson v. Norman (1837), 4 Bing. (n. c.) 52, and Jephson y. Hoiuldns (1841), 2 Man. & G. 366. (s) Be Frere and North Shore Mill Co., [1905] 1 K. B. 366. h) See Be Croasdell and Cammell, Laird & Co., [1906] 2 K. B. 569. {u) E. S. C, Ord. 58, rr. 3, 15. (x) Arbitration Act, 1889 (52 & 53 Yict. c. 49), s. 20. (y) Fast and West India Doch Co. v. Kirk and Bandall (1887), 12 App. Cas. 738. See also Tabernacle Permanent Building Society v. Knight, [1892] A. C. and compare James v. James (1889), 23 Q. B. D. 12. 298, at p. 301

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