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 ( 100 )

CHAPTER IX.
REVOCATION.

CHAP. Ix. REVOCATIONs are either by express acts of the parties or

by operation of law, as by death.
Common law There is a common law right in either party to a
rig.ht to submission at his caprice to countermand the arbitrator's
revoke.
authority, at any time before the award is made.
(Vynior's Case, 8 Rep. 81b; Re Rouse and Meier, L. R.,
6 C. P. 212; 40 L. J., C. P. 145, per Willes, J.) The
arbitrator is a mandatory, and at any time before the
mandate is completed it can be revoked and withdrawn,
unless the power of revocation is taken away by Act of
Parliament. (Fraser v. Ehrensperger, 53 L. J., Q. B.
73; 12 Q. B. D. 310.)
The common law right to revoke the arbitrator's
authority exists notwithstanding the submission declares
that it shall be irrevocable.
Revocation But even at common law, after the submission (whether
punishable as it were by judge's order, order of nisi prius, or agree-
contempt. ment containing a consent clause) was
made a rule of
court, either party revoking the submission would be
guilty of, and liable to an attachment for, a contempt.
(M'ilne v. Gratrix, 7 East, 608; Haggettv. Welsh, 1 Sim.
134; Green v. Pole, 6 Bing. 443; Re Rouse and Meier,
40 L. J., C. P. 145, per Willes, J.) And where the
judge's order contained not only the submission of the
parties, but directed that either party should under
certain circumstances pay to the other " such costs as
the court should think reasonable and just," it was held
that such an order might be made a rule of court after
a revocation, in order to enable the court to dispose
 REVOCATION. 101

of the question of costs. (Aston v. George, 2 B. & A. CHAP. iX.

395.)
It is necessary to distinguish between the revocation General
rement to
of an agreement to refer, and the revocation of the
appointment of a particular person as arbitrator. Al- revocable.
though, at common law, a submission to a particular
named arbitrator could be revoked, a general agreement
to refer to arbitration could not, any more than any
other contract, be revoked. (Moffat v. Cornelius, 39
L. T. 102; Piercy v. Young, 14 Ch. D. 200; 42 L. T.
710; Fraser v. Ehrensperger, 12 Q. B. D. 310; 53 L. J.,
Q. B. 73; Re Smith and Nelson, 25 Q. B. D. 545; 59
L. J., Q. B. 533.) If the agreement was to submit a
specific difference to a named person, and the authority
of that person was revoked, the agreement was at an
end. (Randell v. Thompson, 1 Q. B. D. 748; 45 L. J.,
Q. B. 713 ; Deutsche, dic. Gesellsehaft v. Briscoe, 20
Q. B. D. 177; 57 L. J., Q. B. 4.) But if there was a
general agreement to refer differences, and afterwards
an appointment of an arbitrator to deal with particular
differences which had arisen, the appointment of the
arbitrator could be revoked by either party, but the
agreement to refer continued to exist (Fraserv. Ehren-
sperger, supra); and the court could appoint an arbi-
trator and stay proceedings commenced contrary to the
agreement to refer. (M11ofat v. Corelius, supra.)
There is no power of revocation where the adjudication No revocation
of the arbitrator is a mere appraisement. So that where o raise-
by a deed between P., the plaintiffs, and the defendant,
P. covenanted with the plaintiffs that he would com-
mence and forthwith build and finish a gas-holder tank,
and that the work should be completed on a day men-
tioned, or, in default, P. should forfeit to the plaintiffs
501. and 20s. for every day the completion should be
delayed beyond that time; and the defendant, as P.'s
surety, covenanted with the plaintiffs that P. should
102 THE LAW OF ARBITRATIONS AND AWARDS.

CHAP. IX_ perform the covenants on his part, and in default that
the defendant would pay to the plaintiffs such sum as E.
should adjudge proper; in an action for not finishing
the work, and for not paying the amount which E. had
adjudged proper, it was held that E.'s power could not
be revoked by any of the parties to the deed. (Northamp-
ton Gas Light Co. v. Parnell, 15 C. B. 630; 24 L. J., C. P.
60; Mills v. Bayley, 32 L. J., Ex. 179; 2 H. & C. 36.)
Power of The common law power of revocation having been
revocation
restricted by much abused, the statute 3 & 4 Will. 4, c. 42, s. 39, was
3 & 4 Will. 4, passed.
c. 42. The effect of this section was to take away from
the
parties the power to revoke the authority of an arbitra-
tor or umpire whom they had appointed in every case in
which the submission contained, either in express terms,
or by incorporation (Re Mitchell and Governor of Ceylon,
21 Q. B. -D. 408; 57 L. J., Q. B. 524), an agreement
that it should be made a rule of court. (Re Smith and
Nelson, 25 Q. B. D. 545.)
52 & 53 Vict. This enactment has been repealed, and in its place
c. 49, 1. it is now provided by section 1 of the Arbitration
Act,
1889, that " A submission, unless a contrary intention
is expressed therein, shall be irrevocable, except by leave
of a court or a judge." The section seems to be limited
to references by consent out of court, and it applies only
to submissions which are in writing.
The language of the new Act is not so exact as that
of the old. Its meaning, however, is that when an
arbitrator is appointed his authority cannot be revoked
by either of the parties except by leave. (Re Smith and
Nelson, supra.)
The submission is only irrevocable in the sense in
which that phrase was used before the Act, and is to
have the same effect as if before the Act it had been
made a rule of court. (Re Smith and Nelson, supra, per
Esher, M.R.)
 REVOCATION. 103

The Act does not affect revocations by operation of CHAP. IX.

law. The repealed Act was held not to apply when Matters not
the submission was incomplete ; so that where arbi- "itin the
trators were appointed in pursuance of a clause in a
deed that all disputes should be referred to the arbi-
tration of two persons named, who were directed to
choose an umpire before proceeding, but the umpire
had not been appointed, it was held revocable. (Briqht
v. Durnell, 4 Dow. 756.) The Act is limited to refer-
ences of civil proceedings, and when criminal matters
are referred the submission is revocable, as at common
law. (R. v. Bardell, 5 A. & E. 619 ; R. v. Shillibeer,
5 Dow. 238; R. v. Hardey, 14 Q. B. 529; 19 L. J.,
Q. B. 196.)
An application to the court, under the statute, for Applications
for leave to
leave to revoke, will, in the Chancery Division, be by revoke.
motion or originating summons, and in the King's Bench
Division will be at chambers, by summons, and will not
be granted ex parte. (Clarke v. Stocken, 2 Bing. N. C.
651; 3 Scott, 94.) It must be made before the award
has been executed. (Phipps v. Ingram, 3 Dow. 669.)
The power will be exercised with great caution, and Grounds for
only when good grounds are shown. (James v. Attwood,
7 Scott, 841; Re WoodCroft and Jones, 9 Dow. 538;
Belcher v. Roedean School Site, &c., 85 L. T. 468, per
Mathew, L.J.) The bankruptcy of one party would Bankruptcy
probably be ground for a revocation. (Gaffiney v. Killen, of party.
12 Tr. C. L. Rep. (N. S.), App. 25; Marsh v. Wood, 9
B. & C. 659); so would corruption in an arbitrator Misconduct of
(Drew v. Drew, 2 Alacq. 1; 25 L. T. 282), or his receiving arbitrator.
evidence behind the back of the one party (ib.), or two
arbitrators appointing an umpire by lot (Re European
and American Steam Shipping Co. and Croskey, 29 L. J.,
C. P. 155; 8 C. B., N. S. 397); or if it be shown that
the arbitrator is about to exceed his authority (Faviiell v.
Eastern Counties Rail. Co., 2 Ex. 350; 17 L. J., Ex.
104 THE LAW OF ARBITRATIONS AND AWARDS.

CRAP. Ix. 223; Hart v. Diuke, 32 L. J., Q. B. 55), or does not

act. (Cooper v. Shuttleworth, 25 L. J., Ex. 114, per
Alderson, B.)
Bias of the The courts regard with jealousy anything like personal
arbitrator. interest in an arbitrator, likely to create a bias in his
mind. Therefore active litigation between one of the
parties to a submission, and the arbitrator, is ground to
revoke a submission, although the litigation arose at
a period long subsequent to the date of the submission
and in respect of matters unconnected with it. (Re
Baring Brothers and Doulton, 61 L. J., Q. B. 704.)
Though the mere fact that one of the parties has issued
a writ against the arbitrator, charging him with fraud
in relation to the contract, does not entitle that party to
a revocation of the submission where the arbitrator has
taken no positive step in retaliation. (Belcher v. Roe-
dean School Site, &c., 85 L. T. 468.) And where the
arbitrator is named in a contract, as for example in a
contract for works, the mere fact that the arbitrator is
the engineer or servant of one of the parties, is not a
ground for revoking the submission, though he may
have to decide questions involving his own conduct and
skill; the contract of the parties contemplated that he
should do so. Leave to revoke will only be given if it
is shown that there is a probability that he will be
biased. (Eckersley v. Mersey Docks and HarbourBoard
[1894] 2 Q. B. 667; 71 L. T. 308; Re Donkin and
Leeds Canal, 9 Times L. R. 192.) But, where a com-
pany, after disputes had arisen, claimed to appoint their
manager as arbitrator under a policy of insurance, the
court held that they must appoint another arbitrator
within a week, or the submission would be revoked.
(Re 14ankenberg and The Security Co., 10 Times L. R.
393.)
Arbitrator's It has been held that the admission of evidence by
decision on the arbitrator where such evidence is doubtful (Scott v.
points of
evidlence.
 REVOCATION. 105

Van Sndanu, 1 Q. B. 102), or his refusal to exercise a CHAP. Ix.

power to state the grounds on which his decision is

founded (Clarke v. Stocken, 3 Scott, 94; 2 Bing. N. C.
651), is not a ground for revocation. But the improper
admission of evidence which should have been rejected
is ground for revocation. (Re Lord Gerard and London
and North-Western Rail. Co. [1894] 2 Q. B. 915 ; [1895]
1 Q. B. 459; 63 L. J., Q. B. 764; 64 ib. 260.)
If the arbitrator improperly rejects admissible evi-
dence, the aggrieved party may apply to revoke the
submission, and the court will revoke his authority,
unless the arbitrator will consent to obey the directions
of the court in receiving such rejected evidence. (Hart
v. Duke, 32 L. J., Q. B. 55; Robinson v. Davies, 49 L. J.,
Q. B. 218; 5 Q. B. D. 26.) Where an arbitrator is going
wrong in point of law, even in a matter within his juris-
diction, the court has power to give leave to revoke a
submission; and an arbitrator, having received evidence
objected to as tending to vary a written contract, and
other evidence, inadmissible in one view of the contract
and admissible in another, the House of Lords ordered
the revocation unless the parties agreed to the arbitrator
stating a special case, showing all the purposes for which
he had received, and the effect which he had given to,
the different classes of evidence. (East and West India
Dock Co. v. Kirk, 12 App. Cas. 738; 57 L. J., Q. B.
295.) But in all these cases of an arbitrator going
wrong in point of law on a matter within his jurisdic-
tion, the interference of the court is a matter of dis-
cretion. (James v. James, 23 Q. B. D. 12; 58 L. J.,
Q. B. 424.) Nowadays, instead of an application to revoke
the submission, the application would be for an order
directing the arbitrator to state a case for the opinion
of the court under section 19 of the Arbitration Act,
1889. (See Re Palmer and Ilosken [1898] 1 Q. B. 131,
139, p)er Chitty, L.J.)
106 THE LAW OF ARBITRATIONS AND AWARDS.

CHAP. IN. An applicant cannot set up his own acts as grounds

for revocation. (Re JVoodcroft and Jones, 9 Dow. 538.)
Nor will revocation be allowed because some necessary
third party will not concur in the reference, unless, at
any rate, the submission was conditional upon his con-
currence. And, where an action and a chancery suit
were, with the consent of the parties to the action, referred
at nisi prius, one of the parties to the chancery suit not
being a party to the action, and nothing being said when
the suit was referred as to obtaining his consent, his
refusal to concur was held no ground for revocation.
(IVilson v. Morrell, 15 C. B. 720; 3 C. L. Rep. 333.)
Application for leave to revoke unless the other side con-
sented to join on a commission to take evidence abroad
was ref used. (Re Dreyfus and Paul, 9 Times L. R. 358.)
Appeal from An appeal from a judge at chambers, giving or refusing
decision in .
chambers. leave to revoke a submission, lies to the court of appeal,
and not to a divisional court. (Re Portland District
Council and Tilley [1896] 2 Q. B. 98; 65 L. J., Q. B.
527.)
Notice of, To make a revocation complete, unless it is by operation
must be given
to arbitrator, of law, notice must be given to the arbitrator. (Marsh
v. Bulteel, 5 B. & A. 507 ; Vynior's Case, 8 Rep. 81, n.)
Death of a Unless expressly provided to the contrary, the death of
party a ete
revocation. either party-where there are only two-to a submission,
before the award is made, acts as a revocation of the
authority of the arbitrator. (Cooperv. Johnson, 2 B. & A.
894; Tyler v. Jones, 3 B. & C. 144 ; Blundell v. Brettarqgh,
17 Ves. 232.) Before the Judicature Act, it was the same
where a cause was referred by rule of court or order of nisi
prius (Rhodes v. Haigh, 2 B. & C. 345; 3 D. & R. 60;
Potts v. Ward, 1 Marsh. 366), even where a verdict was
taken subject to an award. (Toussaintv. Hartop, 7 Taunt.
571.) Now, however, it is assumed that if, after the
reference of an action, one of the parties dies, but his
personal representatives are substituted under R. S. C.
 REVOCATION. 107

1883, Order XVII., r. 4, the award would be enforced CHAP. IX.

against them. But, where the cause of action is a tort,
and after the reference and before award one of the
parties dies, his representatives cannot be substituted,
as the cause of action is gone. (Chapman v. Day, 49
L. T. 436; Bowker v. Evans, 15 Q. B. D. 565; 54 L. J.,
Q. B. 421.) The award is futile.
Where the arbitrators were to make and publish their
award in writing, ready to be delivered to the parties in
difference before a certain day, it was held that the
execution of the award in the lifetime of the plaintiff was
sufficient to make it valid, though the plaintiff died
before notice of it to either party to the reference.
(Brooke v. Mitchell, 6 M. & W. 473.)
Where the arbitrator is in the position of a person Not, in case of
appointed by vendor and purchaser to fix the value and a valuation.
price of an estate sold, the death of either party does not
operate as a revocation of the submission. (Caledonian
Rail. Co. v. Lockhart, 3 Macq. 808.)
It seems very questionable whether an award, after Whether
death of one
the death of one of several parties on one side of a of several
reference, is void (Re Hare, 8 Scott, 367 ; 8 Dow. 71, per parties a
Tindal, C.J.), and it will not be so if the submission revocation.
provide that it may be delivered to the parties or their
personal representatives. (Ib. ; Harding v. Wickham,
9 W. R. 652; 4 L. T., N. S. 738.) Without such a pro-
vision it seems the death of one of several parties on the
same side to a joint and several submission, is not a
revocation as to the others. (Vynior's Case, 8 Rep.
82, n.) Therefore, where differences arose between the
owners of a ship and the freighters (the latter having
distinct interests in the cargo), and it was agreed between
them that the matters in difference should be referred,
it was held that the death of one of the freighters, before
award made, only affected the award as to him, and was
no revocation as to the others. (Per Three Justices,
108 THE LAW OF ARBITRATIONS AND AWARDS.

CHAP. IX. cited 2 Chitt. Arch. 1323, 18th ed.) And where the
interest is joint and the cause of action survives, an
award made after the death of one and against the
survivors might perhaps be good (Edmnds v. Cox, 2
Chitt. 435); but it would be bad if made not only against
the survivors, but also directing the executors of the
deceased to give a release. (Ib.; and see Bristow v.
Binns, 3 D. & R. 184.)
Clause pre- It is permissible and usual to insert a clause in a sub-
venting death m o
being a mission or order of reference, where the subject-matter is
revocation. not a personal tort (Bowker v. Evans, 15 Q. B. D. 565;
54 L. J., Q. B. 421), to provide that the death of either
party shall not revoke the arbitrator's authority, but that
the award, in case of death, shall be delivered to their
personal representatives (Cooper v. Johnson, 2 B. & A.
394; Clarke v. Crofts, 4 Bing. 143; 12 Moore, 349);
and in such a case the award will bind the personal
representatives (Dowse v. Coxe, 10 Moore, 273; 3 Bing.
20; Re Hare, supra; M'Dougal v. Robertson, 4 Bing.
435), to the extent of the assets of the deceased in their
possession. (Lewin v. Holbrook, 2 Dow., N. S. 991;
Priorv. Hembrow, 8 AT. & W. 873.) And when the sub-
mission provides that the death of either of the parties
shall not operate as a revocation, the death of one party
before the other has an opportunity to examine him as a
witness, does not affect the provision. (Smith v. Fielder,
10 Bing. 306.)
Marriage of Formerly the marriage of a female party to an arbi-
female party. tration after submission, and before award, revoked
the
arbitrator's authority, as she ceased to have an inde-
pendent existence, and the arbitrator could not bind
her without her husband's concurrence. (Charnley v.
Winstanley, 5 East, 266; M1'Can v. O'Ferrall, 8
C. & F. 30.)
This is, however, no longer the case, and a woman
after marriage will remain bound by her submissions
 REVOCATION. 109

to arbitration as by her other ante-nuptial contracts. CHAP. IX.

(45 & 46 Vict. c. 75, s. 13.)
Though formerly doubted (Marsh v. Wood, 9 B. & C. Bankruptcy
not a revoca-
659), it seems now established that the bankruptcy of tion.
either party to a reference will not of itself operate as
a revocation of the submission (Taylor v. Shuttleworth,
8 Dow. 281; Taylor v. Marling, 2 M. & G. 55; Hems-
worth v. Brian, 14 L. J., C. P. 134; 1 C. B. 131; Ex
parte Edwards, 3 Mor. 79) ; and this whether the sub-
mission is by order of court or not. (Andrews v. Palmer,
4 B. & A. 250; Snook v. Hellyer, 2 Chitt. 43.) The
trustees of a bankrupt cannot, however, be compelled to
become parties to the reference, nor is the submission
binding upon them unless they choose to adopt it.
(Pennell v. Walker, 26 L. J., C. P. 9; 18 C. B. 651;
Sturgis v. Curzon, 7 Ex. 17; 21 L. J., Ex. 38.) And, as
we have seen, the bankruptcy of the one party will be
good ground for an application to the court to revoke.
(Ante, p. 103.)
Even in cases in which a party may be able to revoke Revoking
the authority of the arbitrator, he cannot, as we have toartib
seen (aute, p. 101), revoke the instrument of submission,
but will remain liable to an action on such instrument.
The remedy for revocation of a submission when not
under seal is by action for breach of agreement (Brown
v. Tanner, M'Cl. & Y. 464; Warburton v. Storr, 4 B.
& C. 103; 6 D. & R. 213); when the submission is by
deed the revoking party is liable to an action on the
covenant. (Milne v. Gratrix, 7 East, 607; King v.
Joseph, 5 Taunt. 452.)
On a reference under the L. C. C. Act, 1845, after the No power to
appointment by each party of an arbitrator, neither revoke
appoiithe L. under
C. C.
shall have power to revoke such appointment without Act, 1845, &c.
the consent of the other, nor shall the death of either
party operate as a revocation. (8 & 9 Vict. c. 18, s. 25.)
Similar provisions are made with respect to references
110 THE LAW OF ARBITRATIONS AND AWARDS.

CHAP. IX. under the Railways Clauses Act, 1845 (s. 126); the Com-
panies Clauses Act, 1845 (s. 128); the Railway Com-
panies Arbitration Act, 1859 (22 & 23 Vict. c. 59, s. 11);
and the Public Health Act, 1875 (38 & 39 Vict. c. 55,
s. 180, sub-s. 3.) The Agricultural Holdings Act, 1900,
although depriving the parties, except by mutual consent,
of the power to revoke the appointment of an arbitrator,
does not prevent a revocation by death of either party.
(63 & 64 Vict. c. 50, Schedule 2, Part I. 3, Part II. 8.)