Croning V. Attorney General

1913 Present: Lascelles C.J. and Wood Renton J.

CRONING v. THE ATTORNEY-GENERAL.

191-D. C. Badulla, 2,420.

Arbitration-Legal misconduct-Agreement between parties to refer matters in dispute to specified arbitrators-Compulsory reference to arbitration by Court-Arbitrator's fee.

Plaintiff sued the defendant on a contract made between plaintiff and the Provincial Engineer of Uva, whereby it was agreed, inter alia, that any matter in dispute should be referred to the arbitration of the Director of Public Works. The Court ordered the matters in dispute to be referred to the Director in terms of the agreement. The plaintiff, after the award was filed, moved to have it set aside on the ground that the arbitrator was guilty of legal misconduct, inasmuch as he had approved of a letter written by the Provincial Engineer offering to plaintiff a specified sum in settlement of his

Held, that the foot that the letter was written with the authority  of the arbitrator (Director of Public Works) did' not amount to  misconduct.

LASCELLES C.J.-The objection is thus to the qualification of the arbitrator, and, if raised at all, should have been made before the conclusion of the arbitration.

WOOD RENTON J.-An arbitrator, under such a clause of compulsory reference as the appellant's contract contains, is not disqualified merely because he has already a full knowledge of, and must to some extent have formed an opinion upon, the facts of the case. His appointment cannot be objected to on the ground that the contract makes him in some measure judge in his own cause. It can be challenged only on the ground that there is some reason to suspect that, at the arbitration itself, he will act unfairly, or will not be ready to revise in the light of argument or evidence any opinion that he may previously have formed.

The fact that the arbitrator was a public officer was held not to have disentitled him to his fee.

Where a submission to arbitration does not express a contrary intention, the arbitrator may include the amount of his remuneration in the award.

THE facts are stated in 14 N. L. R. 142.

H. J. C. Pereira (with him Guruswamy), for plaintiff, appellant.

Garvin, Acting S.-G. (with him Akbar, C.C.), for defendant, respondent.

Cur. adv. vult.

April 24, 1913. LASCELLES C.J.-

The circumstances in which this action was brought have already been set out more than once in the course of the action, and it is not now necessary to refer to them in detail. The plaintiff contracted with the Provincial Engineer to construct a portion of the Bandarawela Welimada road, and subsequently brought the present action against the Attorney-General, claiming damages for the wrongful determination of the contract by the Provincial Engineer and for other relief.

Under a clause in the contract, which provided that disputes which might arise with regard to the execution of the contract should be decided by the Director of Public Works, the Court ordered the matters in dispute to be referred to the Director of Public Works. Against this order the plaintiff appealed unsuccessfully. Then the Director of Public Works entered on the arbitration and published an award, which contains" a specific finding on each of the issues framed by the Court for the trial of the action. The present appeal is from an order of the District Court refusing to set the award aside on the ground of legal misconduct on the part of the arbitrator.

The objection by the Attorney-General that the application to set aside the award was not brought within the time limited by section 27 of the Arbitration Ordinance, 1866, was not pressed. But I am of opinion that the objection could not have succeeded, inasmuch as, although the award was read in Court in the presence of the proctors on August 7, notice was served on the plaintiff to attend on the 19th and take notice of the award. The latter date. I think, should be take

Click Here to Read the rest of this document