— Part
I.
References by Consent out of Court.
449
Sect. i. 951. Where the submission is contained in a written agreement and does not express a contrary intention, the common law power The of revocation has been abrogated by statute, and the authority Submission, of the arbitrator is irrevocable except by leave of a Court or g^^^^gg-^^
judge
...
(a).
The power
in writing .
grant leave to revoke a submission is exercised by the irrevocable Court in a sparing and cautious manner (h), and unless the applicant leave o/court can establish that there will be failure of justice if the reference is ^^^q^ i^^^q allowed to proceed, he will not be allowed to revoke (^). granted. Although bankruptcy does not operate as a revocation of a submission (k), the fact that one of the parties has become bankrupt may be a sufficient ground for granting the other party leave to revoke (l). to
"A
submission, 1889 (52 & 53 Yict. c. 49), s. 1: {g) Arbitration Act, unless a contrary intention is expressed therein, shall be irrevocable, except by " Re Smith and Service and Nelson & Sons (1890), leave of the Court or a judge 25 Q. B. D. 545. Applications for leave to revoke a submission maybe made in the Chancery Division of the Court, but are more usually made in the King's Bench Division. In the King's Bench Division the application is made by originating summons returnable before a Master (E. S. C, Ord. 54, r. 12a) from the Master's decision an appeal lies in the ordinary course (E. S. C., Ord. 54, r. 21) to the judge in chambers; and from the judge in chambers to the Divisional Court see Be Frere and Staveley Taylor & Co. and North Shore Mill Co., [1905] 1 K. B. 366, which must be taken to have overruled Be Portland Urban District Council and Tilley & Co., [1896] 2 Q. B. 98. If the application be made in the Chancery Division, it may be made either by originating summons or by motion ; and an appeal lies from the decision of the judge to the Court of Appeal. Leave to revoke a submission cannot be granted ex parte {Clarke v. StocJcen (1836), 2 Bing. (n. c.) 651) ; nor can it be granted after the arbitrator has made his avt^ard [Fhipps v. Ingram (1835), 3 Dowl. 669). {h) Scott V. Van Sandau (1841), 1 Q. B. 102 ; Be Woodcroft and Jones (1841),
9
Dowl. 538.
See t/ames v. Attwood (1839), 5 Bing. (n. c.) 628 (where the arbitrator was charged with prejudice, having taken no note of the evidence of several witnesses) Be Donkin and Leeds Canal Co. (1893), 9 T. L. E. 192 (where he was charged with negligence and incompetence) Jackson v. Barry Bail. Co., [1893] 1 Ch. 238 (where he was charged with bias and prejudice) Belcher v. Boedean School Site and Buildings, Ltd. (1901), 85 L. T. 468 (where he was accused of fraud). The Court held in each of those cases that there were no sufficient grounds for granting leave to revoke the submission. The reluctance of the Court to grant leave for the revocation of a submission is well illustrated by Be Dreyfus and Faul (1893), 9 T. L. E. 358. In that case one of the parties desired to obtain evidence from abroad but the arbitrator could not issue a commission to take such evidence except with the consent of the other party, who, however, refused his consent. Application was then made to the Court for leave to revoke the submission, in order that the matter in dispute might be litigated in the Courts, in which case a commission to take evidence abroad could have been issued. Nevertheless the Court refused the application. On the other hand, in Be Baring Brothers and Doulton (1892), 61 L. J. (q. b.) 704, the Court was satisfied that the arbitrator could not, by reason of some controversy pending between him and one of the parties unconnected with the arbitration, bring an impartial and unbiassed mind to the consideration of the matter referred, and granted leave to revoke the submission. See also Frankenherg v. The Security Co. (1894), 10 T. L. E. 393 and compare Fckersley v. Mersey Docks and Harbour Board, [1894] 2 Q. B. 667, where leave to revoke on the ground that the arbitrator might be biassed was refused, Jackson v. Barry Bail. Co., supra, being approved and Nuttall v. Mayor of Manchester (1892), 8 T. L. E. 513, being distinguished. [k) Andrews v. Palmer (1821), 4 B. & Aid. 250. (?')
[l)
Marsh
H.L.
—
I.
V.
Wood
(1829), 9 B.
&
0. 659.
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