Page:Halsbury Laws of England v1 1907.pdf/709

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Part

II.

References under Order of Court. Sect.

References for Trial.

3.

Sub-Sect.

1.

]yhat

may

487 g^^^ ^ References

be referred.

for Trial.

1005. Any cause or matter pending in the High Court of Justice when order (other than a criminal proceeding by the Crown), or any question or of reference issue of fact arising therein, may be referred for trial ((/) if all the will be made, parties interested who are not under disability consent and if the cause or matter requires any prolonged examination of documents (li) or any scientific or local investigation (i), which cannot in the opinion of the Court or a judge conveniently be made before a jury, or conducted by the Court through its other ordinary officers, or if the question in dispute consists wholly or in part of matters of account (k), the cause (0 or matter or question may be referred for trial without the consent of the parties. Where fraud is alleged, the Court will, as a general rule, be disposed to direct that the matter be tried in the ordinary way and to refuse an order for reference, unless the allegations of fraud are so mixed up with the merits of the case that they cannot be tried separately The Court has no jurisdiction under the Arbitration Act, 1889, to Limit of make an order for reference of questions which do not arise in the J^^sdiction. cause or matter. Any such order, as, for instance, an order for reference of " all matters in dispute between the parties," can only be made with the consent of the parties and under the

see note {y), p. 482, Arbitration Act, 1889 (52 & 53 Yict. c. 49), s. 14 consent under this section does not amount to a submission to arbitration. See Zelma Gold Mining Co., Ltd. v. Hoskins, [1895] A. C. 100 (in Privy Council) (A) For the ascertainment of facts, not for the determination of a question of law, see Ormerod v. Todmorden Mill Co. (1882), 8 Q. B. D. at p. 677, per Brett, L.J. The prolonged investigation does not mean merely reading a large number of letters [Green's Trustee v. Barrett, [1875] W. N. 204), or a mass of printed evidence taken on commission {Hamilton v. Merchants^ Marine Insurance Co. (1889), 58 L. J. (q. b.) 544). But a reference was ordered when it was necessary to examine a large number of invoices in order to prove systematic overcharges {Uoch V. Boor (1880), 49 L. J. (c. P.) 665). (?) An order of reference was upheld in a case relating to the infringement of a patent for improvements in a railway signal, as involving a scientific investigation {Saxby v. Gloucester Wagon Co., [1880] W. N. 28), and in an action to restrain interference with ancient lights, as requiring local investigation (Bannister v. McDonald, [1890] W. N. 50). An order for reference was set aside where the question was whether a coal-mine had been fairly worked under a lease {Case v. Willis (1892), 8 T. L. E. 610), also in a case as to the genuineness of a large number of pictures {Leigh v. Brooks (1877), 5 Ch. D. 592), but in that case there were allegations of fraud. {k) The words "matters of account" should be construed in a wide sense {Re Leigh (1876), 3 Ch. D. 292). Eor orders made in such matters, see Goodiuin v. Bud'den (1880), 42 L. T. 536 (partnership accounts), and Ward v. Filley (1880), o Q. B. D. 427 (action on a builder's bill). In Cloiu v. Llarjper (1878), 3 Ex. D. 198, an action for breaches of covenant to repair where the breaches were denied, an order for reference was refused. (I) The whole case may be referred if a substantial part of the dispute between the parties is matter of account {Hurlhatt v. Barnett <& Co., [1893] 1 Q. B. 77). (m) Russell cfc Co. v. Harris (1891), 65 L. T. 752; and see Leigh v. Brooks, supra. (g)

ante.



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