Arbitrations arising out of rent review provisions in leases — Applications under section 23 of Arbitration Act 1950 to remove arbitrator and to set aside his awards on the ground that he misconducted the proceedings — The awards were attacked on the specific grounds that (1) the arbitrator made use of his own knowledge without the consent of the parties and without disclosure or affording the parties an opportunity for comment, (2) the arbitrator initiated ‘a series of pedestrian counts’, again without consent or knowledge or affording an opportunity to make submissions, and (3) he accepted unsupported evidence from a party which he ‘validated’ without affording the other party an opportunity to deal with it — The arbitrator had submitted affidavits with a view to explaining why he had adopted the procedures which had been criticised and he was represented by counsel on the hearing of the present motions — Held, after considering Fox
v P G Wellfair Ltd and other authorities, that the criticisms of the arbitrator’s procedures were justified — An arbitrator should use his special expertise to evaluate evidence, not to supply it and he must not receive evidence in the absence of a party or use any particular factual knowledge acquired in other proceedings — Evidence is not receivable by the court from the arbitrator on his process of reasoning either to construe his award or to spell out the weight he gave to any particular considerations — The arbitrator in the present case misconducted the proceedings, but there was no imputation on his personal conduct or his sense of fairness — The awards were set aside and an order made for the appointment of a new arbitrator
These were two
notices of motion under section 23 of the Arbitration Act 1950 for the removal
of an arbitrator, Mr R M McKenzie FRICS, and the setting aside of his awards.
The claimants in each case were Top Shop Estates Ltd and the respondents were
in one case C Danino (trading as Goldrush) and in the other case Tandy
Corporation. The procedural issues arose out of arbitrations on review clauses
of leases of premises, in the case of Danino, at 30 The Boulevard, Crawley,
Sussex, and, in the case of Tandy Corporation, at 8 The Broadway, Crawley.
Gavin Lightman
QC, Christopher Priday and A Boyle (instructed by Brecher & Co) appeared on
behalf of the claimants; N Huskinson (instructed by James Beauchamp, of
Birmingham) represented Tandy Corporation; Kirk Reynolds (instructed by
Radcliffes & Co) represented the arbitrator; C Danino was not represented
and took no part in the proceedings.
Giving
judgment, LEGGATT J said: There are before me two notices of motion in each of
which the claimant is Top Shop Estates Ltd and in the first of which the
respondent is C Danino (trading as Goldrush) while in the other the respondent
is Tandy Corporation. Save for minor differences, both the notices of motion
and the arguments of counsel in relation to each motion are the same and
accordingly I shall treat them as one except where it is material to make a
distinction between them, though it is right to say that whereas Tandy have
been represented by counsel before me, C Danino has not been represented.
The motions
are for an order under section 23 of the Arbitration Act 1950 that the
arbitrator in each case, Mr R M McKenzie FRICS, be removed and that his award
dated December 1 1983 be set aside on the grounds that the arbitrator
misconducted himself in certain respects which are set out in the notices of
motion. In particular it is said that in making his award he took account of
his own knowledge without the consent of the parties and without disclosing the
extent of his knowledge and affording to the parties the opportunity to adduce
evidence or make submissions in relation to it. Then it is said that, as is
apparent from his award, he initiated what are in the awards described as ‘a
series of pedestrian counts’, again without the consent or knowledge of the
parties and without their agreeing with the manner in which it was proposed
that pedestrian counts should be conducted and, indeed, without their being
afforded an opportunity to make submissions about how those pedestrian counts
should be interpreted. The arbitrator is further criticised for having taken
account of studies of pedestrian flow at busy periods with the like criticisms made
of the use that he sought without the parties’ consent to make of that
material. Finally, it is said in relation to the Danino arbitration that since
the arbitrator, as he put it, ‘validated from another direction’ inadmissible
evidence put forward by the respondent’s surveyor without disclosing such
validated evidence or affording to the applicant the opportunity of dealing
with it, once more he must be regarded as having, as it says in the notices of
motion, misconducted himself, or, as it might have been said, misconducted the
proceedings, in a way which would render him amenable to an order under section
23. It was made plain by counsel for the claimants that while the notices of
motion speak of the arbitrator being removed, the intention of that part of the
order sought is to secure that, if the matter is to be remitted to an
arbitrator, it should be remitted to an arbitrator other than the arbitrator
who sat in each of the relevant arbitrations.
The arbitrator
was served with notice of these proceedings and he has elected, as he was
entitled to do, to put in an affidavit in relation to each matter in which he
seeks to explain his conduct of the arbitration. It will be necessary to look
in a little more detail at the affidavits, but suffice to say that both
affidavits go beyond a mere statement of what happened at the arbitration and
purport to set out the reasoning which the arbitrator followed in arriving at
each of the conclusions criticised in the notices of motion. Not only is that
criticism of his affidavits made by counsel for the claimants but counsel for
Tandy has not sought to uphold those parts of either affidavit which are
concerned with the arbitrator’s mental processes. The arbitrator has had the
advantage of being represented before me by Mr Kirk Reynolds. He has not sought
to suggest that any of the passages criticised could be upheld in relation to
the substantive matters with which the notices of motion are concerned. Rather,
he says, one should look at them as explaining what in fact motivated the
arbitrator in order that he should be saved from any more serious criticism
that the court might feel constrained to make of his conduct.
The
arbitrations concerned arose out of two leases. The lease now vested in Tandy
and formerly in the claimants was made in 1978 in relation to premises called 8
The Broadway, at Crawley in Sussex. The lease relating to Danino, which also
was vested formerly in the claimants, was made in 1979 and related to 30 The
Boulevard, Crawley. Disputes having arisen between the parties, the president
of the Royal Institution of Chartered Surveyors appointed Mr McKenzie as
arbitrator. In each case what he was concerned with was the rent review due at
the Christmas quarter day of 1982 and the amount to be appointed in respect of
each of the premises. In September 1983 the arbitrator made directions. On
November 15 he conducted what appears to have been the first of more than one
inspection of the premises, the subject of the arbitrations. On November 18,
though this does not appear on the face of either of the awards, it seems from
the affidavits since made by the arbitrator that he had a qualified assistant
conduct the pedestrian count of which complaint is made. It may be assumed,
since the arbitrator says he acted on it, that some form of report, though what
form is not specified, was made by the anonymous assistant to the arbitrator.
On December 1 1983, as he had said he would at the time when he made his
directions, the arbitrator published his awards. As soon after that as December
16 1983 affidavits were sworn in support of the present notices of motion,
which were themselves issued a few days later. The arbitrator remained mute in
response to these criticisms until June 19, when he swore the affidavits to
which I have already referred.
In support of
the notices of motion there are sworn affidavits, each in similar form, by the
surveyor acting for the claimants, Mr Warren Thomas. He explains by reference
to the awards, which he exhibits, what the more detailed matters of criticism
are of the respective awards. He exhibits also the directions which, as I have
indicated, were made on September 29 1983. In those directions the arbitrator
provides that the matter shall be dealt with by written representation. He
calls for submissions from the parties dealing with specified matters. He says
in para 4:
Facts
relating to the comparable transaction shall be validated unless both parties
agree otherwise.
He makes
provision for exchange of submissions and for counter-submissions to be made
though not exchanged. At para 6 in each case, he says:
I will then
inspect the property and present my award by December 1 1983.
Those words
are particularly relied upon for the actual language which the arbitrator has
chosen to use omitting any mention, notwithstanding the guidance afforded by
the guidance notes issued by the Royal Institution of Chartered Surveyors, of
any intention to inspect comparable properties that might be referred to by
either surveyor.
The award
itself must be looked at in the light of the criticisms made. The particular
award to which I shall for present purposes refer is that made in the Tandy
arbitration although the like considerations apply, of course, to the Danino
arbitration. At p 2 of the award in the Tandy arbitration, the arbitrator says:
I have also
inspected, or pavement inspected, the comparisons referred to by the parties.
In his general
observations, part of his paragraph numbered 1, the arbitrator said:
I therefore
propose to examine each comparable in the light of respective submissions and
my own knowledge and observation. The day of my inspection was dry and
reasonably sunny though cold. The centre was busy enough to confirm my personal
assessment of relative positional qualities, these views being since confirmed
by a series of pedestrian counts taken
reasonably sunny day.
In his second
numbered paragraph dealing with comparison evidence, the arbitrator mentioned
that:
Respective
surveyors’ interpretation on positional quality conflicts and my own view is
that it is difficult to distinguish between the two locations that are both, in
comparative terms, secondary and both lacking a consistently heavyweight
pedestrian flow.
Later, in
relation to one of the landlord’s comparisons, the arbitrator said:
The position
enjoys a strongly biased pedestrian flow to the south side of the broad walk
because the bulk of the old town shopping is to the south.
Then, in
relation to another of the landlord’s comparisons, also in the broad walk, the
arbitrator said in conclusion on that score:
I disagree
with the landlord’s surveyor’s assessment of positional quality, however, and,
from my own knowledge and observed pedestrian flow, the broad walk is quite
considerably busier than the west side of The Broadway. Later in his award, in
referrng to one of the tenant’s comparisons, the arbitrator said:
There is
little to choose in pedestrian flow between The Broadway and Haslett Avenue,
frontages of this unit and the pedestrian flow in both cases being relatively
light.
Then, again in
relation to another of the tenant’s comparisons, he said:
The
positional difference between the subject property and the entire block nos 20
to 76. The Boulevard are not greatly different in terms of pedestrian flow,
although the subject property appears marginally superior in general character.
Finally, in
relation to assessment of award, the arbitrator said:
The most
direct and appropriate physical comparison to the subject property is that
offered by 11 The Broadway which is of similar size and in a superior location.
It lacks the disadvantages suffered by the subject property where I incline
towards the tenant’s surveyor’s assessment that the location is secondary,
tends to be obscured by bus queues and is generally less busy in terms of
passing flow than its visual prominence would suggest. It is noticeable that
many people cross The Broadway diagonally to the disadvantage of no 8,
and the
arbitrator refers first to physical and positional comparison offered by 11 The
Broadway and then to inferences that may be drawn from others of the
comparables mentioned. He says that he took account of:
3. My own
knowledge, taken together with studies of pedestrian flow at busy periods,
and he mentions
also the arguments adduced by the parties.
That reference
appears to me to constitute the plainest possible statement that one of the
four matters of which the arbitrator took account in reaching his conclusion as
to the appropriate annual rent was his own knowledge taken together with
studies of pedestrian flow at busy periods. To the same effect, as I have
already remarked, is the arbitration relating to Danino where the similar
matter which he said he had taken into account was:
My own
knowledge, together with studies of pedestrian flow at busy periods.
In that case
there were four rather than three other matters of which he said he took
account. The Danino arbitration was the one in which, at an earlier point in
his award, the arbitrator said:
The lessee’s
surveyor has relied upon a rent review transaction where he himself was acting
for the lessee and refers also to a neighbouring property where his unsupported
figures are accepted, as I have validated evidence from another direction.
In his
affidavits the arbitrator explained that the other direction was another of
several arbitrations in some, if not all, of which the claimants were also
claimants but which were decided quite separately from the arbitrations now
before the court.
On behalf of
the arbitrator, Mr Reynolds refers to a passage in Russell on Arbitration,
20th ed, p 444, in which there are cited comments by Donaldson J in the case of
Port Sudan v Chettiar & Sons [1977] 1 Lloyd’s Rep 166, at pp
178, 179. The learned judge explained the modern practice as being for the
notice of motion in these circumstances to be served upon the arbitrator, and
said that he then has a choice whether to participate fully in the proceedings
as an active party, to content himself with filing an affidavit setting out any
facts which he considers may be of assistance to the court, or to take no
action. In this case it is the first of those three alternatives which the
arbitrator regards himself as having selected.
It being
acknowledged on the arbitrator’s behalf that what he says in the passages from
his affidavits which are objected to is not material to whether his award
should be set aside or not, I do not consider that it would be profitable for
me to recite the explanations that the arbitrator gives for how he came to make
the award in the form in which he did. He is anxious, for example, to point out
that in relation to the inspection of comparables, although he admittedly
should have said when he gave directions that it was his intention to inspect
them, the parties might be thought, upon one construction of the submissions
made by the landlord’s surveyor, to have contemplated that he would. So he
contends that, it being a common practice, unsurprisingly, for an expert
arbitrator to inspect comparables, he should be forgiven for assuming that both
parties intended him to do so. I think in the circumstances it would suffice if
I say that the court will always take, unless there be cogent reasons to the
contrary why it should not, a charitable view of what motivated an arbitrator
in coming to particular conclusions or conducting an arbitration in a
particular fashion even if, having reviewed the arbitration and the award
following it, the court takes the view that the arbitrator has indeed (whether
one describes it as ‘technically’ or not) misconducted either himself or the
proceedings. It might be said, as Mr Reynolds on behalf of the arbitrator
submits, that in arranging upon his own initiative for a pedestrian count to be
taken, the arbitrator was acting over-zealously. It does not seem to me to be
profitable to seek to select epithets appropriate to describe the conduct of
the arbitrator in such circumstances. If he was acting over-zealously, then
more relevantly, he was, in my judgment, also acting under a misapprehension of
his function as an arbitrator, which is not to play the part of Perry Mason
where he feels that the submissions or evidence of the parties might usefully
be supplemented.
In reply upon
these matters, Mr Lightman, for the claimants, remarks, as he was entitled to,
that the claimants at all events (and it may be also counsel for Tandy) had
assumed on reading the affidavits lately sworn by the arbitrator that he wished
to be heard on the substantive matter and that the affidavits were being
proffered in some way in support of submissions that he would wish to make on
such issues. It would, as Mr Lightman suggests, have been simpler, since the
arbitrator wished to do no more than to explain why he had behaved as he did,
had he written a letter to the parties and, if need be, invited them to put it
or its contents before the court so that the course which he had taken should
not be misunderstood. Mr Lightman submits, and in my judgment is entitled to
submit, that Donaldson J cannot have intended in the dictum which I have cited
from Russell on Arbitration to suggest that arbitrators should put in
affidavits not complying with the rules of evidence for the purpose of
explaining what their reasoning was, notwithstanding that the court is not
entitled, as the authorities show, to pay regard to such reasoning in reaching
a conclusion whether what the arbitrator did is properly characterised as
misconduct. Mr Lightman submits that an arbitrator must not receive evidence in
the absence of the parties, nor may he use any factual knowledge acquired in
other proceedings. He next submits that an expert arbitrator may use his expert
knowledge for the purpose of understanding and evaluating evidence but not so
as to supply it. In aid of that submission he relies in particular upon the
case of Fox v P G Wellfair Ltd [1981] 2 Lloyd’s Rep 514*. That
was a case which for present purposes is of no consequence in relation to its
facts but rather for the general observations made by the Court of Appeal upon
issues relevant to these motions. At p 522 the Master of the Rolls, Lord
Denning, said about the arbitrator’s function:
He can and
should use his special knowledge so as to understand the evidence that is given
— the letters that have passed — the usage of the trade — the dealings in the
market — and to appreciate the worth of all that he sees upon a view. But he
cannot use his special knowledge — or at any rate he should not use it — so as
to provide evidence on behalf of the defendants which they have not chosen to
provide for themselves, for then he would be discarding the role of an
impartial arbitrator and assuming the role of advocate for the defaulting side.
*Editor’s
note: also reported at (1981) 263 EG 589, 657.
Dunn LJ, at p
528, said this:
It is well
established that where an arbitrator hears evidence in the absence of either or
both parties, his award will be set aside on the ground of misconduct, unless
perhaps it can be shown that evidence would not have affected the award,
and the
learned lord justice cites, among other authorities, Walker v Frobisher
(1801) 2 Ves Jun 69a, also cited by Mr Lightman on behalf
that and another case:
. . . where
it was held that the principle applied to mercantile as well as legal
arbitration.
The
authorities cited for that proposition include two further authorities relied
on by Mr Lightman, Royal Commission on the Sugar Supply v Trading
Society Kwik-Hoo-Tong (1922) 38 TLR 684 and Eastcheap Dried Fruit Co
v N V Gebroeders Catz Handelsvereeniging [1962] 1 Lloyd’s Rep 283. Dunn
LJ then said:
On the
analogy of those cases, it seems to me that an expert arbitrator should not in
effect give evidence to himself without disclosing the evidence on which he
relies to the parties, or if only one to that party. He should not act on his
private opinion without disclosing it. It is undoubtedly true that an expert
arbitrator can use his own expert knowledge. But a distinction is made in the
cases between general expert knowledge and knowledge of special facts relevant
to the particular case.
The learned
lord justice proceeded a little later in his judgment:
So if the
arbitrator is relying on general expert knowledge there is no need to disclose
it. O’Connor LJ gave a good example in argument. An arbitrator is required to
value a bull killed by the negligence of one of the parties. If the expert
arbitrator relies on his general knowledge of the value of bulls, including
fluctuations in the market known to anyone who studies the market, there is no
need to disclose it. But if he has recently sold an identical bull for a
certain sum, it is necessary to disclose that to the parties. Or if the dead
bull is found by the arbitrator, unknown to the parties, to be suffering from
some disease or injury which reduces its value, it is necessary to disclose
that fact to the parties. So in assessing rents an expert arbitrator can rely
on his general knowledge of comparable rents in the district. But if he knows
of a particular comparable case, then he should disclose details of it before
relying on it for his award.
The last
citation from that case useful for present purposes is to be found towards the
end of Dunn LJ’s judgment at p 532 where he said in relation to an ancillary
arbitration which was the subject of the appeal in that case:
The same
considerations apply to a lesser extent to Mr Fisher’s arbitration. In any
event, in view of the misconduct in relation to the main arbitration, I do not
think that the award in Mr Fisher’s arbitration can stand either. Mr Fisher
must have lost confidence in the arbitrator by reason of his conduct of the
main arbitration.
For the
claimants, Mr Lightman also submits that if an arbitrator does use evidence of
his own, the award will be set aside unless the party opposing the grant of
relief can affirmatively establish that no other award would reasonably have
been possible if that evidence had not been given. That reproduces the language
in the Eastcheap v Gebroeders case cited by Dunn LJ in Fox
v Wellfair. Finally, on the law, Mr Lightman submits that evidence is
not admissible from the arbitrator of his process of reasoning either to
construe his award or to spell out the weight given by him to any
consideration. In aid of that submission the principal authority is Duke of
Buccleuch and Queensberry v Metropolitan Board of Works (1872) LR 5
HL 418. It is spelt out in some detail by Cleasby B when giving his opinion.
That view of the law, to the effect that the court cannot investigate the
secret thoughts and intentions of an arbitrator, was specifically approved in
the speeches of their lordships and in particular in the speech of Lord Cairns
at p 462.
The
submissions which Mr Lightman makes are in effect not controverted either by
the arbitrator or on behalf of Tandy. The only room for dispute, it is said, is
upon the facts. The claimants rely on the clear indications in the awards that
the arbitrator has used his personal knowledge as well as the pedestrian
counts. These, it is said, are matters which he was not entitled to take into
account and when one finds reference to personal knowledge one is entitled to
assume that it means what it appears in its context to mean, that is to say,
knowledge of a specific character acquired by him and peculiar to him rather
than such as may be known to experts generally practising in Crawley or,
alternatively, in the South of England. It is indisputable that the arbitrator
did inspect the comparable properties without having contemplated expressly in
the terms of his directions that he would do so. It is indisputable also, as is
obvious from the conclusion of each of the awards, that he relied upon the
pedestrian counts. It also appears that part of his personal knowledge was
derived not merely from that but also from matters which he had gleaned in the
conduct of other arbitrations.
To meet these
criticisms, Mr Huskinson submits, first, that the arbitrator has not in fact
been guilty of misconduct. When one looks at what is said about pedestrian counts,
it appears that the parties were in conflict about how well placed the premises
were and they always envisaged that what Mr Huskinson terms ‘a view’ would be
held by the arbitrator, meaning an inspection, as it would appear, not merely
of each of the properties, not merely of the immediate locality in which each
of the properties was, but in a wider context of The Broadway generally and
extending even to the comparable premises. Mr Huskinson argued that because the
landlords knew that the same arbitrator was acting in other arbitrations, it
would have been unrealistic for them to assume that the arbitrator would act as
though he had not seen any other relevant premises than the one the subject of
the arbitration in question. The inspection, it is said, was intended to be
conducted by the arbitrator with his eyes open and it was further intended that
the product of his inspection should constitute part of the evidence. He could
not but note what he saw and he plainly was not limited upon any inspection to
a mere assessment of room configurations and matters within the premises
concerned but was entitled to look wider afield. So in this fashion it is
sought to suggest that not only the position of the premises but the pedestrian
flow as it passed them were matters of which the arbitrator was entitled to
take cognisance and where necessary, apparently, to supplement what he might
observe for himself by experiments conducted on his behalf by his qualified
assistant.
It seems to me
that that view of pedestrian counts conducted by or under the auspices of an
arbitrator in aid of an inspection of premises, or as a check or confirmation
of an impression which he otherwise gained or which he thought was established
or suggested elsehow, is wholly illegitimate. There can be no warrant for it
and, while, of course, I accept that the arbitrator was motivated by the most
worthy intentions and did not think for a moment to do anything which could
possibly be regarded as unjust to either of the parties, none the less a moment’s
reflection will make plain that if either of the parties objected to the amount
in which he assessed the rent, they were quite entitled to assume, and, indeed,
bound to assume, in my judgment, having regard to the way in which the award
and the conclusions of it were expressed, that the pedestrian count had played
a part in the conclusion to which the arbitrator came. It is rightly said in
this context by Mr Lightman that one is not merely dealing with a ‘Yes’ or ‘No’
answer by an arbitrator; one is dealing with the assessment of a rent, which
may well, therefore, be based at any given point on the scale constituted by
the difference between the amounts contended for by the respective surveyors.
In those circumstances, even confirmation of a conclusion provisionally
reached, or reached without recourse to pedestrian counts, might well be
affected in some amount by pedestrian counts conducted in the way that the
arbitrator now says they were.
The court must
pay regard in this context not merely to any actual effect that there can be
shown to have been upon the arbitrator’s conclusion but to the risk that anyone
reading his awards might suppose that he had been influenced by these
considerations; and anyone reading the awards would have to do so without
paying regard to the contents of the arbitrator’s affidavits. In so saying, I
do not intend any criticism of the arbitrator, still less to suggest that he
should be disbelieved when he says that he was motivated as he says he was, but
it is important that an award should be construed by reference to that which it
says and not by reference to afterthoughts of the person making it.
Mr Huskinson
also submits that if he were wrong in his primary submission, still there was
no misconduct because here it is affirmatively shown that the matters
complained of, and in particular the pedestrian counts, could not have affected
the award. I have already made comments about that and in this context would
merely stress the circumstance that it is for the person seeking to uphold the
award to establish that but for the matters wrongfully introduced the result
would have remained the same. For the reasons I have indicated, it seems to me
that Mr Huskinson’s valiant attempts to establish that the references to the
pedestrian counts suggest that they were to constitute no more than a check on
a check do not provide a sufficient answer; still less do they establish that
which it is necessary for him to establish affirmatively if the award is to be
allowed to stand.
Finally, it is
said on behalf of Tandy that it is not enough that the matters of which
complaint is made might have affected the award. If they raise no more than the
mere possibility that the answer would have been otherwise if regard had not
been paid to the matters complained of, the court should not interfere. That
is, of course, a well-known principle recently approbated in this court by
Lloyd J, but in my judgment of no relevance whatever in the present context.
In relation to
personal knowledge, Mr Huskinson submits, with somewhat more support from the
language of the awards, that the arbitrator cannot be unequivocally shown to
have taken account of specific matters known to him rather than to more general
matters. He suggests that because the landlords must have known that the
arbitrator would look, for example, at the premises which were the subject of
the other arbitrations with which he was concerned, they cannot but have
recognised that the results of those inspections were matters which he would or
might take into account in dealing with the present references. I have tried
hard to understand the logical force of that submission, but, although I, of
course, am sympathetic with a layman who is required to disregard particular
inspections that he may have made for totally different purposes, it appears to
me that it is quite illegitimate for an arbitrator not to have indicated an
intention in the context of the relevant arbitrations that he will take into
account other inspections that he may make and, indeed, which either or both of
the parties may know that he is to make. The mere fact that he is to view other
premises constitutes no warrant for his taking the result of those inspections
into account in connection with the arbitrations concerned unless he has made
plain that that is what he intends to do and afforded the parties the
opportunity of making their submissions or their comments about those other
premises. Upon that basis also, therefore, it appears to me that the awards of
the arbitrator are exceptionable.
The reference
to validation of a comparable in the Danino award really falls within the same
principle as I have last referred to in relation to both.
For these
reasons, therefore, I must hold, without there being implicit in my so holding
any imputation upon the personal conduct of the arbitrator or his sense of
fairness, that he has misconducted the proceedings in such manner as makes it
necessary that the proceedings the subject-matter of each of the awards in the
Tandy and Danino cases should be set aside, and I so order.
The
arbitrator’s award was set aside and an order made for his removal and the
appointment of a new arbitrator. The respondents, Tandy Corporation, were
ordered to pay costs, but an order against the arbitrator personally to pay
costs was refused.
