An Arbitration between Brien and Brien

• Jurisdiction: Ireland
• Judgment Date: 17 November 1909
• Date: 17 November 1909
• Court: High Court

In The Matter of An Arbitration Between Brien and Brien (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1910.

Arbitration — Award — Setting aside — Misconduct of arbitrator.

A submission to arbitration provided that the arbitrators should fix the value of a farm worked in partnership by the parties to the arbitration, and owned by them, and should also decide which of the said parties should have the first offer of purchasing the farm at that valuation. For the purpose of the arbitration each of the arbitrators was, with the assent of the parties, requested, “on behalf of the party whom he represented, to make a separate valuation of the farm.” One of the arbitrators, accompanied only by the party who had nominated him, walked over and inspected the farm for the purpose of valuing it, and did not again inspect it. When the arbitration was held, the arbitrators, after comparing their valuations, and without calling any

evidence or being requested to do so, made and published their award, by which they fixed the value of the farm. On a motion to set aside the award:—

Held, that the award should be set aside, on the ground of misconduct on the part of one of the arbitrators in inspecting the farm in company with one A party, and in the absence of the other or of any person representing him.

Walker v. Frobisher (6 Ves. 70) followed.

Motion to discharge a conditional order confirming an award.

The parties to the award, John Brien and Henry Brien, were joint owners of a farm held under a judicial tenancy, and of the stock and farming implements thereon, subject as to the entire to an annuity of £30 payable to their sister Sarah Brien for her life or so long as she remained unmarried. John Brien was the owner of five undivided eighths of the farm, stock and implements, and Henry Brien owner of three undivided eighths of the same.

On the 6th September, 1904, they executed a partnership deed, by which they agreed to work the farm as partners and to divide the profits in proportion to their respective shares therein. The deed contained a clause providing that, “if at any time during the continuance of the partnership … any dispute, difference, or question should arise between the partners touching the partnership, or the rights or liabilities of the partners under the deed, every such dispute, difference, or question should be referred to two arbitrators or their umpire, pursuant to the Common Law Procedure (Ireland) Act, 1856.”

By an agreement, dated the 15th March, 1909, and made between John and Henry Brien, after reciting that they had agreed to dissolve the partnership created by the deed of 6th September, 1904, and that disputes and differences were then pending as to the terms of the dissolution and the distribution of the partnership assets, it was agreed (inter alia) as follows:—

“(1.) All matters in dispute, and all questions arising out of or in any way relating to the partnership heretofore existing, and to the dissolution thereof, shall be referred to the arbitration of Ebenezer Smith and Michael Dodd; or, if and so far as they may be unable to agree (and as to such matters only), to their umpire to be appointed in writing under their hands before proceeding in the reference.”

“(10.) The said arbitrators or their umpire shall determine what in their or his opinion is the fair valuation of the entire of the said farm, together with the stocks, crops, and fanning implements thereon, and shall further determine which of the said partners shall have the first offer of taking over the same at such valuation.

“(11.) Neither of the parties shall bring or prosecute any action against the other, or against the arbitrators or the umpire, or either of them, for or in respect of the said matters in difference, or any or either of them, or for or in respect of the said award to be made in pursuance of the submission.”

It was also provided that the agreement and the award to be made thereunder might be made a rule of Court, and that the arbitration should in all respects be conducted according to the provisions relating to arbitrations in the Common Law Procedure (Ireland) Act, 1856, and should also have all the incidents and consequences of an arbitration under that Act. The other clauses of the agreement are not material for the purposes of this report.

It appeared from the affidavits that Ebenezer Smith was nominated by John Brien, and Michael Dodd by Henry Brien.

On the 26th March duplicate letters, addressed to the arbitrators jointly, were sent to each of them by the solicitors acting for John Brien. These letters, after informing the arbitrators of

their appointment, of the terms of the reference, and giving particulars of the tenure of the farm in question, and of the rent, rates, and charges thereon, concluded as follows:—

“You are therefore requested, on behalf of the party whom you represent, to make separate valuations of—(1) The selling value of the interest in the said farm; and (2) the value of...