287 / 324
had found against the claimants on their claim for
rejection;
(£) in-respect of their total claim for
dzmages amounting to £686 45. 4d. he only found
them entitled to recover £73 ;
(V) he formed the view-
that the buyers had presented an exaggerated claim ;
and
(d}
if the buyers had only put forward a claim
for a sum approximately equivalent to that which
the umpire awarded it was unlikely that the sub
stantial costs of the arbitration would have been
incurred. Taking the view which the umpire took,
as to failure of the claim of a right to reject the goods
and as to the amount of damages, he was entitle d
to make the order for costs which he did in fact
make. His Lordship did not say that it was an order
which he would have made, but the umpire had
a
discretion, and his Lordship did not think that there
were sufficient grounds for saying that he should
interfere.
But Mr. Kerr said that it was apparent from the
material before the Court that the arbitrator was
wrong in law in deciding that there was no right to
reject. It did seem fairly clear that the umpire had
made an error of law as regards one of the sizes
of timber, and Mr. Kerr said thst if the error of law
was corrected then the umpire's four reasons for
finding against him on the question of costs would
go. Mr. Littman, on the other hand, said that an
umpire was entitled to make mistakes in fact and
law and in considering whether there was a proper
exercise of his discretion this Court had to put itself
in the same position as the umpire at the time when
he made the award.
If the only issue which had been before the umpire
had been that of rejection and the arbitrator had made
the same mistake as he had now made, his Lordship
found it very difficult to see how he would have
jurisdiction to set aside the award as to costs when
he would not have jurisdiction to set aside the award
as to substance, because there was nothing to amount
to misconduct but merely a mistake on the part of
the umpire.
His Lordship thought that he was not entitled
to say that the umpire had made a mistake as to the
law and that mistake had made him wrongly exercise
his jurisdiction. His Lordship thought that he had
to put himself in the same position as the umpire
and, on the fact and the law as he understood them.
His Lordship could not see that he had exercised
his discretion unjudicially.
(Heaven & Kesterton Ltd.
v.
Sven Widaeus A.B.)
((1958) i. All. E.R. 420)
A. Taxing Master's certificate is not complete unless he
reaches definite conclusions and states them in his
certificate.
Pursuant to an order dated May 18, 1956, and
made in an action between two plaintiffs and six
defendants, the first defendant lodged a bill of
costs in three parts, of which Part 2, the major part
of the bill as a whole, was a lump sum bill. On
June 20, 1957, the taxing master, on a preliminary
appointment, ruled that the work to which Part 2
of the bill referred was contentious business and
directed that the bill be redrawn in detailed form.
On July
i, 1957, the first defendant carried in
objections to the taxing master's diredtion, the
heading to the objections being : " Objections taken
by the first defendant to the preliminary taxation
by (the taxing master) .
.
." On July 15, 19575 the
taxing master gave his answers and disallowed the
objections. On July 30, 1957, the taxing master
signed a certificate, stating : " In pursuance of the
order ... of May 18, 1956 .
.
. whereas I should
have proceeded to tax the bills of costs as by the
.
.
. order directed, but .
.
. the (first defendant)
having carried in objections to my direction dated
June 20, 1957 .
.
. to bring in details in lieu of a
lump sum charge in his bill of costs, I have con
sidered such objections and disallowed the same and
at the request of the (first) defendant I make this
my separate certificate so that the (first) defendant
may take the opinion of the court on the principle
on which the .
.
. bill should be taxed in relation to
the said lump sum charge."
On a summons by
the first defendant asking that his objections of July i,
1957, to the " preliminary taxation " of costs under
the order dated May 18, 1956, should be allowed and
that the taxing master's certificate should be varied
accordingly, none of the other parties appeared
before the judge.
Held by Roxburgh, J., that the taxing master's
certificate of July 30, 1957, was not a certificate of
taxation or allocatur within the meaning of R.S.C.,
Ord. 65, r. 27 (39), (40) and (41), because under
these rules it was the duty of the taxing master to
reach conclusions and to state his conclusions and
his reasons in a certificate, and in the present case
the taxing master had not made a certificate in which
conclusions were stated and reasons were given ;
therefore, R.S.C., Ord. 65, r. 27 (41) did not apply,
the jurisdiction of the court to review taxation had
not arisen, and the summons would be dismissed.
Re Donaldson ((1884), 27 Ch. D. 544), dis
tinguished.
Per curiam :
Leave to amend the summons would
have been given if the court had had opportunity
to hear argument on both sides.
Per Roxburgh, J. : " The first defendant carried
in a bill of costs which is divided into three parts.
Part i is an itemised bill amounting in all to £2 os. 4d.
Part 2 is a lump sum bill, except that it does contain
certain disbursements. That lump sum bill occupies
80