Re Enoch and Zaretzky, Bock & Company 's Arbitration
| Jurisdiction | England & Wales |
| Date | 1910 |
| Court | Court of Appeal |
Arbitration - Umpire - Witness called by Umpire - Misconduct - Evidence - Removal -
Neither a judge nor an umpire has any right to call a witness in a civil action without the consent of the parties.
Arbitrators are bound to observe the rules of evidence no less than judges.
APPEAL from a decision of a Divisional Court (Darling and A. T. Lawrence JJ.).
By a contract of September 11, 1907, Messrs. Enoch, the buyers, bought 1500 tons of Rangoon rice bran from Zaretzky, Bock & Co., Limited, the sellers, and the contract contained an arbitration clause. Disputes arose; the sellers appointed a Mr. Harvey and the buyers appointed a Mr. Norton as their arbitrators; and the arbitrators appointed Mr. F. W. Von Lymburg to be umpire. Mr. Milner Brown was subsequently appointed instead of Mr. Harvey, who was ill. The proceedings under the arbitration, according to the statement of the sellers, were not conducted fairly and impartially by the umpire. In particular it was alleged that at an early date he had made up his mind against their contention and did not give proper consideration to their case; that he insisted on the attendance of Mr. W. Zaretzky to give evidence, and that he would not give them an adjournment to get evidence from Rangoon. Without their consent, and without informing them of the nature of the evidence, he himself, of his own initiative, called as a witness a Mr. Kolwey, to whose evidence, including a copy of an award produced by him, he attached great weight; and he refused to admit some of their evidence, but ruled, without hearing it or waiting for their further evidence from Rangoon, that the bran was not in proper condition at the time of shipment. In reply to a request by the sellers that he would state certain questions of law for the opinion of the Court, the umpire wrote that he was quite willing to comply with this request, but he must ask them to hand him first a cheque for 150l. on account of legal expenses, &c.
The sellers gave notice of motion for an order that the umpire should be removed and the matters in dispute remitted to the arbitrators, to be heard by them, and a new umpire to be appointed by them, or that leave should be given to revoke the submission, on the ground that the umpire had misconducted himself by obtaining and receiving evidence against Zaretzky, Bock & Co., Limited, behind their backs, and by receiving evidence against them which he had himself obtained, without giving them any notice of the nature of such evidence, and by rejecting material evidence which Zaretzky, Bock & Co., Limited, wished to give, and by refusing to give them an opportunity of obtaining and giving evidence to meet the evidence obtained by himself, and by making up his mind and pronouncing a decision against their case and in favour of Messrs. Enoch before hearing that evidence, and shewing personal bias against Zaretzky, Bock & Co., Limited, throughout the arbitration proceedings and not giving their evidence and arguments a fair hearing.
At the hearing of the motion an affidavit by the umpire was read, in which he said that he did not propose to deal controversially with the allegations that had been made, but simply to state the facts so far as they seemed to him material for the information of the Court.
The Divisional Court dismissed the motion, and the sellers appealed.
Simon, K.C., and Maurice Hill, for the appellants. The umpire ought to be removed under s. 11 of the Arbitration Act, 1889. Larchin v. EllisF1 defines what is reasonable conduct on the part of an arbitrator, and the general principles to be observed by him are discussed in In re an Arbitration between Gregson and Armstrong.F2 Whether an arbitration is conducted on the footing of a legal or mercantile arbitration, the first principles of justice must be applied: In re an Arbitration between Camillo Eitzen and Jewson & Sons.F3 This arbitration has not been conducted in accordance with the most elementary rules of justice, and the only proper course to adopt is to send the matter back and submit it to a fresh umpire.
Atkin, K.C., and D. C. Leck, for Messrs. Enoch. No award has yet been made, and the whole matter is open. The only question is whether the umpire has been guilty of such misconduct as would entitle the appellants to have him removed during the arbitration. No case has been made out to justify such a course. The only case made against him is his refusal to grant an adjournment. If the reception of any evidence is objected to, objection should be taken at once and before the summing up: Abbott v. Parsons.F4 An umpire has the same power as a judge has of calling witnesses. At the trial of an action the judge has power to call and examine a witness who has not been called by either of the parties, and, when he does so, neither party has a right to cross-examine the witness without the leave of the judge: Coulson v. Disborough.F5 The appellants in the present case raised no objection to the calling of Mr. Kolwey.
F. D. Mackinnon and G. C. Ranken, for the buyer's arbitrator.
No reply was called for.
COZENS-HARDY M.R. This case has given me some anxiety, because it compels me to say something about a gentleman who is not directly a party to the litigation, but, having very carefully considered the whole case, I feel satisfied that this appeal must be allowed. [The Master of the Rolls stated the facts shortly, and continued.] The jurisdiction of the Court to remove an umpire for misconduct is, of course, quite plain. It is given in express terms by s. 11 of the Arbitration Act, 1889. There are at least four transactions in this case which compel me, taking them altogether, to conclude that there has been here such misconduct on the part of the umpire, Mr. Von Lymburg, as not only justifies but really compels us in the exercise of our duty to remove him.
The first point, and one to which I attach very considerable importance, is that unfortunate transaction about the 150l. There was a question as to the construction of the contract, admittedly a serious question. I express no opinion...
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...that he cannot do this: Jones v National Coal Board [1957] 2 QB 55, at page 64, per Denning LJ, referring on this point to In re Enoch & Zaretsky, Bock & Co [1910] 1 KB 327. The judge, according to Mr Maynard, departed from his judicial role and assumed the role of inquisitor. I note, in ......
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...countries) is to decide cases on the evidence that the parties think fit to call before it. It is not inquisitorial. In re Enoch and Zaretzky Bock & Company, (1910 volume 1 King's Bench Division, page 327) decided that a judge or umpire had no right to call a witness in a civil action witho......
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Cases referred to in 1965
...Coalport Chine Co. (1895) 2 Ch. 404; 64 L.J. Ch. 710. ......................... 66 In re Enoch and Zaretzky, Bock & Co.'s Arbitration (1910) 1 K.B. 327 C.A. 83 In re Hackney Pavilion (1924) 1 Ch. 276. .......................................................... 67 In re Ratcliff (1898) 2 Ch. ......
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Preliminary Sections
...v. Sunderland Corporation (1941) 2 K B 26 314 Horsfall v. Amachree (1938) 4 W.A.C.A. 18 2 In re Enoch and Zaretsky, Bock & Co. Ltd, (1910) 1 K.B. 327. 152 In Re Gordon, Roberts v. Gordon (1887) 6 Ch. D. 531. 61 In re Henry Pound (1889) 42 Ch. D. 402. 241 In re Knight and Tabernacle Permanen......
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Courts 2
...that the parties think fit to call before it. See: Fallon v. Calvert (1960) 2 Q.B. 201. In re Enoch v. Zaretzky Bock & Co’s Arbitration (1910) 1 K.B. 327; Jones v. National Coal Board (1957) 3 All E.R. 155.” - Per Ogwuegbu, J.S.C. in University of Calabar v . Essien Suit No. S.C. 188/1991; ......
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Table of Cases
...Imoloame v. W.A.E.C. (1992) 9 N.W.L.R. (Pt. 265) 303.....................378, 380, 523 In re Enock & Zaretzky Bock & Co . (1910) 1 K.B. 327...........................720, 721 In Re Faithful (1885) 14 Q.B.D. 627………....………….……………………243 In re Forrest (1981) A.C. 1038.................................