CLAUSE 16.—(Application of 52 & 53 Vict, c. 49.) (Hansard, 2 April 1930)

§ The ATTORNEY-GENERAL

I beg to move, in page 21, line 18, to leave out from the word "apply" to the word "to" in line 19.

In moving this Amendment, it is necessary to explain to the House how the matter stands. This question was raised by hon. Members opposite during the Committee stage, and I think we have met the case which was presented to us. We have stated that the Arbitration Act shall apply with all the consequences of the Arbitration Act with two exceptions. First of all, we say that the Arbitration Act shall apply only in so far as that Act is consistent with Part I of this Bill. I will give an illustration of the sort of point this qualification is designed to 1394 meet. On page 13 of the Bill, clause 5, Sub-section (8), it is provided that the arbitrator in default of an agreement shall be appointed by the Board of Trade: whereas under the Arbitration Act the arbitrator in default of agreement would be nominated by the Court or a judge. The other qualification is a more important one, and we commend it to the House in the circumstances of this case. We intend to put in a proviso that: Provided that where on any such arbitration an award is stated in the form of a special case for the opinion of the court under paragraph (b) of Section seven of that Act the decision of the High Court thereon shall be final. I am afraid that this is a very dry and technical subject. There are two provisions under the Arbitration Act of 1889. 1395 They are to be found in Section 7 and Section 19. Section 7 provides that: the arbitrators or umpire, acting under a submission, shall, unless the submission expresses a contrary intention, have power— (b) to state an award as to the whole or part thereof in the form of a special case for the opinion of the Court. If the parties do not exclude that and a special case is stated, they can come before the first Court. There may be an appeal to the Court of Appeal, and from that there may be an appeal to the House of Lords. The judges have frequently said that the procedure is not altogether satisfactory. There is another provision under that Act, Section 19, which says: Any referee, arbitrator or umpire may at any stage of the proceedings under a reference, and shall, if so directed by the court or a judge, state in the form of a special case for the opinion of the court any question of law arising in the course of the reference. With regard to a question of law arising in the course of the reference, an arbitrator is bound to state a special case if so directed, and the decision of the first court is final. Although in the great majority of cases a question of law arising under Section 19 will come before a Divisional Court consisting of 2 or 3 judges, yet this is simply a matter of procedure. The decision is final. We are trying by these amendments to make a decision under Section 7 of the Arbitration Act, 1889, as final as is a decision under Section 19 of the same Act, for in other respects the procedure under Section 7 is more convenient than under Section 19. Under the schemes which this Bill contemplates we could exclude Section 7 altogether, and leave Section 19 only. We suggest to the House, as a reasonable compromise, that Section 19, and all the machinery connected with it, should be left untouched; and that the machinery of Section 7 should not be excluded—as we could exclude it in our scheme—but should also apply, except that the decision shall rest with the court of first instance, and not go to the higher courts. I speak with some hesitation on this delicate subject, but, on the whole, a somewhat lengthy experience in the commercial courts has taught me this. I think that business men in the City of London view with not altogether com- 1396 plete favour the system of appeals, and particularly the dual appeal. A very distinguished City man said to me not very long ago, "Give us as good a judge as you can in a court of first instance. We are sure to get good judges, and anyhow I would rather take my chance and accept the decision of that judge rather than go to two more Courts and spread the case, it may be, over years, and possibly get a result which is determined by one judge this way or the other in the last resort." At any rate, there is something to be said for that view.

Here we are dealing with a matter which intimately concerns commercial men, and I would suggest to the House that it is very desirable, particularly as this Act, if it becomes an Act, may not last a very long time, to get quickly to the Court and determine finally what the rights of the parties are. We do not think that this is a case for the normal procedure of appealing to the Court of Appeal, and then after that to the House of Lords, which would mean that the final determination of the case would be held up for a very long time. We propose to ask the House to say, although we have consented to include the Arbitration Act, in answer to the request of the right hon. Gentleman—[Interruption.] I gather that he resents the word "consented," though I hope he does not. The right hon. Gentleman wanted us to include the Arbitration Act, and I say quite frankly that we have endeavoured to approach these Amendments with the desire to meet the wishes of the other side so far as we can. In this case we have done it subject to that one qualification. We have thought it desirable that this determination should rest with the High Court, in order to get a speedy determination once for all.

§ Sir L. WORTHINGTON-EVANS

I suppose I ought to be humbly grateful to the Government for having consented to meet us to some extent or rather, not to meet us, but to give partial justice to those who may have reason to complain of the Government's future action. It is intended that there shall be the protection, for people whose property is being taken compulsorily from them of being able to go to arbitration to have their views considered by an independent 1397 tribunal. The Bill as drawn provided that those who went before that tribunal were to be finally bound by its decision. No matter what point of law arose, they would have no right of entry to the courts of the land. But the Government have graciously consented to give them entrance to the courts of the land, or rather, to one of the courts of the land—only up to the court of first instance. Although hundreds of thousands of pounds' worth of property may be in dispute, the dispute has to stop at the court of first instance. In every other matter the law of the land is that, even in a small claim of under £1,000, if the court of first instance is deemed to be wrong, the judgment can be appealed against to the Court of Appeal, and, if necessary, to the highest tribunal. The Government now, however, no matter how important the question is, say, "We have graciously consented to let you go to the court of first instance, and no further shall you go." If I thought that I could move the President of the Board of Trade, I would pursue the matter, but I feel that it is hopeless to attempt to go further, and, therefore, with a protest, I must accept what the Government have been graciously pleased to give.