Page:Halsbury Laws of England v1 1907.pdf/705

 — Part

II.

References under Order of Court.

483

Sect. 1. But where the order for reference is made under the inherent jurisdiction of the Court, the subject-matter of the reference is not In General. necessarily hmited to the cause or matter in which such order is Eeferences made, for it may, and not infrequently does, include all matters in under Court's

The referee or arbitrator is not (g). any sense an officer of the Court. He has such authority and powers as the parties may agree by the order of reference to confer upon him, and his award is in most respects similar in its nature and effect to an award made in an arbitration pursuant to a submission difference between the parties in

Moreover, whereas in certain cases the Court can a compulsory order of reference for trial under the Arbitration Act, 1889, against the will of either or even both of the parties (li), an order for reference under the inherent jurisdiction of the Court can in no case be made save with the consent of all the parties. The real nature and effect of an order for reference made under that, the parties the inherent jurisdiction of the Court is this having agreed that the cause or matter, or that all matters in difference between them (as the case may be), should be referred to arbitration, instead of being litigated in Court, the action is stayed, and an arbitration similar to an arbitration pursuant to The distinction between a submission out of Court takes place. an arbitration pursuant to a submission out of Court and an arbitration pursuant to an order made by the Court under its inherent jurisdiction and not under the Arbitration Act, 1889, is that in the former case the submission is made by parties out of Court, and in the latter case the submission is contained in the order of the Court; and the arbitrator is usually empowered to direct how judgment should be entered in the action (i). References pursuant to an order made by the Court under the Arbitration Act, 1889, may be either for inquiry or report or for they are entirely different from arbitrations held pursuant trial Moreover, references for inquiry or to a submission out of Court. report differ in many important respects from references for trial (k). There are three official referees, who are barristers of ten years When an standing, and are appointed by the Lord Chancellor (l). order for reference to an official referee is made, the nomination is determined by the method of rotation prescribed by the rules of Court (m) or one of the three may be nominated by the order for reference {n).

inherent jurisdiction.

out of Court.

make

Effect of order of





,

Wagon Co., Ltd. v. Harding and the Trouville Pier and: (g) Darlington Steamboat Co., Ltd., [1891] 1 Q. B. 245. (A) Arbitration Act, 1889 (52 & 53 Yict. c. 49), s. 14. {%) See Part I., pp. 439 et seq., ante. (k) Where an action is pending in a county court the judge may, with the consent of both parties, order the action, with or without other matters, which are within the jurisdiction of the Court, in dispute between the parties, to be referred to arbitration to such person or persons, and in such manner, and on such terms as he may think reasonable and just. The award of the arbitrator or arbitrators is entered as the judgment in the action, and, subject to the power of the judge to set it aside, is as binding and effectual as if given by the judge. See County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 104. (/) Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 83. (m) E. S. C, Ord. 36, rr. 45, 46. (n) Ihid., rr. 45, 47.

reference.

Eeferences

under Arbitration Act, 1889.

Official

referees.