235 / 328
convict the accused if they were satisfied that the
accused were voluntarily present at the fight and
might have joined in at a later stage. The appeals
were accordingly allowed.
(R.
v.
Allan and others,
The Guardian,
June i9th,
1963).
Duty of an umpire in taxing and settling costs of an
arbitration award
The English Arbitration Act 1950 gives power,
in certain circumstances, to have the remuneration
of umpires and arbitrators taxed. Section 18 (i)
gives to the arbitrator or umpire a discretion as to
the costs of the reference and of the award. Where he
awards costs he may either leave them to be taxed
by the taxing machinery of the court in whole or in
part or he may himself " tax or settle the amount of
costs to be paid." A common practice is for the
umpire to separate the costs of the award from the
costs of the reference. The costs of the award are
the arbitrator's and umpire's fees and any expenses
which they may have incurred and the costs of the
reference are the costs incurred by the party to whom
costs are awarded other than the costs of the award.
The costs of the award are " taxed or settled " by
the umpire and the costs of the reference are
frequently left to the taxing machinery of the court.
In a motion by a ship owner to set aside or remit
the award of an umpire made in the form of a
special case under section 21 (i)
(b)
of the Arbitration
Act 1950 the facts were as follows :
On May 3ist
1953 the owner entered into a charter party with the
charterers whereby a vessel was chartered to them
for a voyage and the agreement provided for
arbitration in the event of a dispute arising. Each
side was to nominate an arbitrator. A dispute did
arise and the arbitrators appointed being unable to
agree after a meeting of two hours appointed an
umpire. In making his award the umpire ordered
that the costs of the award amounting to £612 33.
be paid by the owner. He further ordered that the
owner pay to the charterers the costs of the reference.
The fees of the two arbitrators were £183 155. and
£157 IDS. respectively. The owner brought a motion
to set aside the award on the grounds that the umpire
had misconducted himself by settling his own and
the arbitrators' remuneration at a figure which was
wholly excessive. The court held that the umpire's
jurisdiction to tax and settle costs involved the
application by him of his own independent mind
and judgment to the fees demanded and the work
done in order to be satisfied that the fees were fair
and reasonable, bearing in mind the interests of the
party who have to pay them as well as the legitimate
interests of the arbitrators. It appeared from an
affidavit sworn by the umpire that he did not regard
it in any way his business to consider and assess the
value of the service of the arbitrators or the remunera
tion which they could fairly claim to be paid. He
simply included in the award the amounts which
they asked him to include. The words in the section
gave a power to " tax or settle " and the umpire
had now done this and accordingly was guilty of
technical misconduct. It was ordered that the award
be remitted for reconsideration of the provision as to
costs of the award.
(Government of Ceylon
v.
Chandris, 1963 2
All
England Reports,
page i).
Confidential report on a minor not disclosed to one of the
parties in a wardship matter
The mother of two infant children applied by
originating summons that the infants be made wards
of court and for custody, care and control and access.
The father was a respondent to the application,
there being conflict between the parties as to custody,
etc. On the issue of the summons, the infants became
wards of court and the master subsequently ordered
that they be joined as respondents, and that the
official solicitor be their guardian
ad /item.
In due
course, the official solicitor lodged a statement of
facts in which he submitted that the mother should
take the infants to be seen by a named medical
specialist, and at the same time he lodged a confi
dential repor*-. The master ordered that the mother
take the infants to the specialist and subsequently
the official solicitor lodged a further statement
accompanied by a further confidential report annexed
to which were reports of the specialist. Both
statements but neither of the confidential reports
were disclosed to the parties.
The mother contended, on a preliminary point,
that she was entitled as of right to see the whole of
the reports of the official solicitor, including the
confidential reports and medical reports annexed
thereto.
The High Court rejected the mother's contention
and on appeal it was held that it was a fundamental
concept of justice and fundamental to any judical
inquiry that a properly interested party must have
the right to see all information put before a judge
which he takes into account and to comment on it
and, if needs be, to combat it. Accordingly before a
judge took into account a confidential report
submitted by the official solicitor it must be dis
closed to the parties if they so desired.
(In
re K. (Infants) L,R. Ch.
1963, page 382),