14. Registration of memorandum under Schedule 2, paragraph 8. Rectification of register

15. Costs of solicitor or agent under Schedule 2, par

graph 12

16. Certificate under sect. 1, sub-sect. 4

17. Execution

18. Suspension of proceedings or weekly payments on refusal of injured workman to submit to medical examination; Schedule 1, paragraphs 3, 11.

19. Applications against insurers under sect. 5 20. Application of money ordered to be invested 21. Transfer of proceedings

22. Filing and service of documents and notices 23. Procedure generally

24. Record of proceedings. Special register 25. Matters, how distinguished

26. Forms

Rules.

.38-45 46, 47

48 49

50

51-58

59

60, 61

62

63, 64

65

. 66

67

The Rules are intended to apply, as far as possible, the procedure in County Court actions to arbitrations under the Act, with such modifications as seem to be necessary.

Dealing with the Rules in detail:

:

Rule 1. Provides for the title, commencement and construction of the Rules.

Rule 2. Prescribes who are to be parties to an application for arbitration, with a special provision as to cases where both the undertakers and a contractor may be liable under sect. 4.

Rule 3. Provides for the joinder of applicants in accordance with Order III., Rule 1a, of the County Court Rules (December 1896).

Rules 4, 5. Provide for applications on behalf of dependants, following the principle of Lord Campbell's Act (The Fatal Accidents Act, 1846, 9 & 10 Vict., c. 93, and amending Act, 27 & 28 Vict., c. 95).

Rule 6. Provides for applications where deceased workman leaves no dependants, Schedule 1, paragraph (1) (a) (iii.).

Rule 7. Provides for persons under disability, partners, and the representation of numerous parties having the same interest.

Rules 8-12. Provide that application for arbitration shall be made by filing a request, following the procedure

on an appeal under the Agricultural Holdings Act, or a petition in equity, rather than that on the commencement of an action; such request to contain particulars of the claim. Full forms are given in the Appendix.

Rule 13. Provides for fixing a day and place for the arbitration, following, as to the place, the Admiralty Rules in force in the County Courts. Order XXXIXB., Rules 1, 2.

Rule 14. Provides for notice to the applicant and respondents. Rule 15. Provides for service on the respondents, either by

a bailiff or by the applicant or his solicitor, and adopts the provisions of sect. 2 of the Act as to the service of notice of an accident by registered post. Rule 16. Provides for the stay of numerous applications for arbitration on claims arising out of the same circumstances, on the employer undertaking to be bound, so far as liability to pay compensation is concerned, by the award in a selected case. (See County Court Rules, Order VIII., Rules 2-6.) Rule 17. Provides for the respondent filing an

answer

to the claim, and that he shall, subject to such answer, be deemed to admit the correctness of the applicant's particulars, and his own liability to make compensation. (See County Court Rules, Order X., Rules 9, 10.)

Rule 16. Provides for a respondent submitting to an award, or paying money into Court, and for the proceedings consequent thereon.

Rules 19-23. Deal with claims to indemnity under sect. 4 or sect. 6, or otherwise.

The question has been considered, to what extent the third party procedure under Order XI. can be applied in cases in which an employer claims under either of these sections to be entitled to indemnity against a sub-contractor or a stranger; and the Rules are framed on the assumption that it can be only applied for the purpose of providing that a sub-contractor (unless he is himself liable as an employer under the Act), or a stranger, shall not be entitled in any future proceeding to dispute the validity of an award against the employer.

An arbitration under the Act will be a very different thing from an action: and the question whether such a sub-contractor or a stranger is liable to the workman, and is consequently liable under the sections referred to to indemnify the employer, is a very different one from the question whether the employer is liable to the workman.

For instance, such a sub-contractor is apparently liable under sect. 4 only in case of personal negligence or wilful act, or under the Employers' Liability Act: while a stranger would be liable under sect. 6 only in case of wilful act or negligence and a sub-contractor sued under the Employers Liability Act would be entitled to any defence open to him under that Act, while a stranger would be entitled to any defence open to him at common law, such defences including contributory negligence on the part of the workman, a very much wider term than the "serious and wilful misconduct" on which alone an employer can rely under sect. 1, sub-sect. (2) (c); and it is difficult to see how a sub-contractor or stranger can be compelled to submit these questions to the judge or arbitrator, and deprived of his right to have them decided by a jury, or what power the judge or arbitrator has to decide them at or after the arbitration.

The third party procedure is for these reasons expressly limited so as to make it bind the third party only as to the validity of the award against the employer in respect to matters which under the Act the judge or arbitrator has power to decide as between the workman and the employer, and not as to the third party's liability to indemnify this employer.

There seems, however, to be no reason why the judge or arbitrator should not, if the third party and the respondent consent, decide the question of the third party's liability; and provision is therefore made by Rule 22 for the decision of the question by consent.

Rule 23. Provides for claims to indemnity as between respondents, and makes provision for the judge or arbitrator giving effect, independently of any consent to his so doing, to the right of indemnity given by sect. 4 to an employer who is called upon to pay compensation to a workman in the service of a contractor, in cases where the contractor is joined as a respondent, and it is decided in the arbitration that he is liable under the Act to pay compensation to the workman. In such a case there can be no further question to be tried as between the employer and the contractor as to the right to indemnity, which is expressly given by the Statute; and there can be no difficulty in the judge or arbitrator giving effect to such right.

Rule 24.

Provides that, subject to the special provisions of the Rules, the procedure in an arbitration shall be the same as in an ordinary County Court action tried by the judge without a jury.

Rule 25. Deals with the appointment of medical referees under paragraph 13 of Schedule 2. Under this paragraph, which applies to the whole of the kingdom, and to all arbitrations, whether before committees, agreed arbitrators, judges, or arbitrators appointed by them, committee, arbitrator or judge may appoint a medical referee "subject to regulations made by the Secretary of State and the Treasury." Rule 25 provides that medical referees may be appointed by a judge or arbitrator subject to and in accordance with such regulations, and that such regulations, so far as they relate to proceedings in the County Court, or before. appointed arbitrators, shall be deemed to be Rules of Court, and shall have effect accordingly.

Rule 26. Provides for the award, and embodies sect. 7 (c) of the Arbitration Act, 1889, as to the correction Forms of award are given in the

of errors.

Appendix.

Rule 27. Deals with the appointment of an arbitrator by the judge.

Schedule 2, par. 2 of the Act, provides that matters referred to the judge shall, if the Lord Chancellor so authorises, be settled by an arbitrator appointed by the judge. The paragraph does not indicate the circumstances in which such authorisation may be given; but it is presumed that the object of the enactment is to enable the Lord Chancellor to grant such authority in cases in which the time of the judge so fully occupied that he cannot deal with arbitrations himself.

In framing the rule it has been assumed that in Courts where the business is heavy and arbitrations are likely to be numerous, the Lord Chancellor may think it proper to grant a general authority to refer matters under the Act to an arbitrator; and that in other cases he will grant special authorities from time to time as occasion may require.

The Act does not require the arbitrator to possess any qualifications, and it is therefore provided that any appointment shall be subject to the approval of the Lord Chancellor. Rules 28 and 29. Apply to proceedings before an arbitrator the provisions of the Rules as to proceedings before the judge, with a proviso that where the parties agree, and application is made for an award by consent, such award may be made by the judge, and thereupon the functions of the arbitrator shall cease.

Rule 30. Provides for the statement and hearing of

questions of law submitted by an arbitrator to the

judge under Schedule 2, paragraph 4. This paragraph seems to apply to an arbitrator selected by the parties as well as to an arbitrator appointed by the judge, and the Rules provide that the submission shall be by special case.

Rule 30 (5). Empowers the judge, if his decision disposes of the whole matter, to make an award himself instead of remitting the case to the arbitrator.

Rule 30 (7). Deals with the costs of a special case. Rule 31. Provides that where a matter has been settled by an arbitrator, any subsequent arbitration in the same matter shall, as a rule, be referred to the same arbitrator.

Rule 32. Provides for the appearance of parties under paragraph 5 of Schedule 2. It adopts generally the provisions of sect. 72 of the County Courts Act, and makes special provision for appearance, by leave of the judge or arbitrator, by an officer of a trade union or other society to which the workman may belong. The rule follows sect. 72 of the County Courts Act

as to costs.

Rule 33. Provides for costs awarded by a judge or an arbitrator being taxed according to the County Court scales of costs; the scale to be determined, where the subject of the award is a weekly payment, by the judge or arbitrator. Paragraph (3) provides that any reasonable offer of compensation may be taken into consideration when dealing with costs; and paragraphs (4) and (5) provide that costs incurred by a workman in submitting to examination by a medical referee under Schedule 1, paragraph 3, or if ordered to so submit himself on a reference under Schedule 2, paragraph 13, may be allowed as costs in the arbitration. Rule 34. Provides for the taxation by the registrar of costs awarded by an arbitrator agreed on by the parties.

Rule 35. Applies to proceedings under the Act the provisions of sects. 120 and 121 of the County Courts Act as to taking and furnishing copies of notes of question of law raised.

Rule 36. Provides for appeals, as to which some Rule of the Supreme Court be required (see Schedule 2, paragraph 4.)

Rule 37. Provides for the procedure after an appeal has been decided.

Rules 38 to 44. Provide for the drawing up and trans