The County Court Rules 1981

ORDER 19REFERENCE TO ARBITRATION OR FOR INQUIRY AND REPORT OR TO EUROPEAN COURT

PART IREFERENCE TO ARBITRATION

Interpretation of Part I

1.  In this Part of this Order, unless the context otherwise requires, “reference” means the reference of proceedings to arbitration under section 92 of the Act, “order” means an order referring proceedings to arbitration under that section and “outside arbitrator” means an arbitrator other than the judge or registrar.

Mode of reference

2.—(1) Except as provided by paragraph (3), a reference shall be made only on the application of a party to the proceedings sought to be referred.

(2) Unless the court otherwise directs, an application by a party to any proceedings for a reference may be made—

(a)in the case of a plaintiff, by notice incorporated in his particulars of claim or request for the issue of a summons;

(b)in the case of a defendant, by notice incorporated in any defence or counterclaim of his;

(c)in any case, on notice under Order 13, rule 1.

(3) Any proceedings in which the sum claimed or amount involved does not exceed £500 shall stand referred for arbitration by the registrar upon the receipt by the court of a defence to the claim, but the registrar may, on the application of any party, refer the proceedings for arbitration by the judge or by an outside arbitrator.

(4) Where any proceedings are referred for arbitration by the registrar under paragraph (3), he may, on the application of any party, rescind the reference if he is satisfied—

(a)that a difficult question of law or a question of fact of exceptional complexity is involved; or

(b)that a charge of fraud is in issue; or

(c)that the parties are agreed that the dispute should be tried in court; or

(d)that it would be unreasonable for the claim to proceed to arbitration having regard to its subject matter, the circumstances of the parties or the interests of any other person likely to be affected by the award.

(5) Where an application for a reference is made under paragraph (1) and the proceedings are not referred to arbitration under paragraph (3), the following provisions shall apply:—

(a)Subject to sub-paragraphs (b) to (d), an order may be made by the registrar.

(b)Any party to the proceedings may, at any time before the application is heard, request the registrar in writing to refer the application to the judge and thereupon the proper officer shall fix a day for the hearing of the application by the judge and give notice thereof to the parties.

(c)An order shall not be made referring proceedings to the judge except by or with the leave of the judge.

(d)An order shall not be made referring proceedings to an outside arbitrator except with the consent of the parties.

(e)If the court is satisfied that a charge of fraud against a party is in issue in the proceedings, an order shall not be made except with the consent of that party.

Reference of other matters in dispute

3.  If it appears to the court at any time after a reference has been made, whether by order or otherwise, that there are any other matters within the jurisdiction of the court in dispute between the parties, the court may order them also to be referred to arbitration.

Service of order for reference to outside arbitrator

4.  Where proceedings are referred to an outside arbitrator, the order or request shall be served on the arbitrator as well as on the parties, but it shall not, unless the court directs, be served on anyone until each party has paid into court such sum as the registrar may determine in respect of the arbitrator's remuneration.

Conduct of reference

5.—(1) Subject to any directions of the court as to the conduct of the reference, rule 9(a) to (e) shall apply, with the necessary modifications, in relation to a reference or order as they apply in relation to an order under section 93 of the Act.

(2) Any proceedings referred to arbitration under rule 2 shall be referred on the terms set out below unless the court otherwise directs:—

Terms of reference

Restriction on allowance of costs

6.  No solicitors' charges shall be allowed as between party and party in respect of any proceedings referred to arbitration under rule 2(3), except—

(a)the costs which were stated on the summons or which would have been stated on the summons if the claim had been for a liquidated sum;

(b)the costs of enforcing the award, and

(c)such costs as are certified by the arbitrator to have been incurred through the unreasonable conduct of the opposite party in relation to the proceedings or the claim therein.

PART IIREFERENCE FOR INQUIRY AND REPORT

Mode of making order for reference

7.  An order under section 93 of the Act for the reference of any proceedings or questions to the registrar or a referee for inquiry and report may be made—

(a)on an application by any party before the hearing on notice; or

(b)on an application by any party at the hearing; or

(c)at any stage of the proceedings by the court of its own motion.

Registrar's power to make order

8.  An order referring any question arising in any proceedings to a referee for inquiry and report may be made by the registrar if the sum claimed or amount involved in the proceedings does not exceed the sum mentioned in Order 21, rule 5(1)(b), or in any other case with the consent of the parties.

Conduct of reference

9.  Subject to any order as to the conduct of the reference—

(a)the registrar may hold the inquiry at the court house or at the court office or at any place convenient to the parties;

(b)a referee, other than the registrar, may hold the inquiry at any place convenient to the parties;

(c)the registrar or referee may inspect any property or thing concerning which any question may arise;

(d)the attendance of witnesses may be enforced by summons and the inquiry shall be conducted in the same manner, as nearly as circumstances will permit, as if the inquiry were the hearing of an action;

(e)subject to rule 10, the registrar or referee shall have the powers of a judge with respect to discovery and production of documents and in the conduct of the inquiry;

(f)the registrar or referee may submit any question arising in the inquiry for the decision of the court;

(g)the report shall be in writing and filed and—

(i)the proper officer shall give notice to all parties of the filing of the report;

(ii)subject to the right of the referee or any party to appeal to the judge, the registrar shall fix the remuneration of the referee unless it has been agreed;

(iii)upon payment into court by any party of the amount fixed for the remuneration of the referee, without prejudice as to how it shall ultimately be borne, the parties shall be at liberty to inspect the report;

(h)when the report has been filed–

(i)if the further consideration of the proceedings has not been adjourned to a day named, the proper officer shall fix a day and give not less than 10 days' notice thereof to all parties;

(ii)on the day named or fixed any party may apply to the court to adopt the report or, on giving not less than 5 days' notice of his intention to do so, may apply to the court to vary the report or to remit it or any part of it for further inquiry and report, and any such notice shall contain particulars of the variation or remission sought;

(iii)the court may at any time on the application of any party or the referee determine by whom and (if by more than one person) in what proportions the remuneration and expenses of the referee shall be borne, whether or not any payment or deposit has been made for or on account of such remuneration and expenses, and may make all orders and give all directions necessary to give effect to the determination.

Saving for power of committal

10.  Nothing in this Part of this Order shall authorise the registrar or referee to commit any person to prison or to enforce any order by committal.

PART IIIREFERENCE TO EUROPEAN COURT

Making and transmission of order

11.—(1) In this rule “the European Court” means the Court of Justice of the European Communities and “order” means an order referring a question to the European Court for a preliminary ruling under Article 177 of the Treaty establishing the European Economic Community, Article 150 of the Treaty establishing the European Atomic Energy Community or Article 41 of the Treaty establishing the European Coal and Steel Community.

(2) An order may be made by the judge before or at the trial or hearing of any action or matter and either of his own motion or on the application of any party.

(3) An order shall set out in a schedule the request for the preliminary ruling of the European Court, and the judge may give directions as to the manner and form in which the schedule is to be prepared.

(4) The proceedings in which an order is made shall, unless the judge otherwise orders, be stayed until the European Court has given a preliminary ruling on the question referred to it.

(5) When an order has been made, the proper officer shall send a copy thereof to the senior master for transmission to the registrar of the European Court; but, unless the judge otherwise orders, the copy shall not be sent to the senior master until the time for appealing to the Court of Appeal against the order has expired or, if an appeal is entered within that time, until the appeal has been determined or otherwise disposed of.

(6) Nothing in these rules shall authorise the registrar to make an order.