Yeates v Caruth

• Jurisdiction: Ireland
• Judgment Date: 22 June 1894
• Date: 22 June 1894
• Docket Number: (1893. No. 6249.)
• Court: Court of Appeal (Ireland)

Yeates

and

Caruth (1).

Appeal.

(1893. No. 6249.)

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1895.

Arbitration — Consent to refer — Two arbitrators chosen and named by both parties — Common Law Procedure Act, 1856, ss. 15, 16.

The parties to an action consented to refer all matters in dispute to the arbitration of A and B, with power to call in an umpire. B declined to act:—

Held (affirming the decision of Andrews, J.), that the Court had no power to appoint an arbitrator in place of B.

Appeal from the order of Mr. Justice Andrews, sitting for the Exchequer Division, dated the 16th May, 1894, refusing to appoint an arbitrator in the stead of Humphrey Barron, who had declined to act as such under the consent entered into in the action.

The material portion of the consent is set out verbatim in the judgment of the Lord Chancellor.

Craig, Q.C. (with him, Chambers), for the appellant:—

The proper construction of section 15 of the Common Law Procedure Act, 1856, is that if any appointed arbitrator refuse to act, or become incapable of acting, or die, and the submission does not provide that the vacancy is not to be supplied, in the event of the parties failing to concur in appointing a new arbitrator, then, after service of the prescribed notice, the Court is to have power to appoint a new arbitrator. Here Barron was appointed arbitrator; he has refused to act: there is no stipulation preventing the appointment of a new arbitrator; the prescribed notice was served; all the conditions required by the section are fulfilled, and the Court has therefore power to appoint a new arbitrator. The analogy of the provisions of section 5 of the

Arbitration Act, 1889 (52 & 53 Vict. c. 49), is in favour of this view. [They cited Gumm v. Hallett (1)].

Gordon, Q.C., and Bartley, for the respondent:—

In section 15 of the Common Law Procedure Act, 1856, the words “if any appointed arbitrator refuse to act” must mean “if any single arbitrator when appointed refuse to act”; the words “such document” prove conclusively that the second clause of the sentence deals only with a case where a single arbitrator has been appointed. These words incorporate by reference the document mentioned in the preceding clause, that is, a document which “provides that the reference is to be to a single arbitrator.” When the section refers to a document referring...