The Gazette 1955-58

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