Report No. 76

4.10. English case as to "special case".-

The well-known decision of the Court of Appeal-Czarinakow v. Roth Schmidt & Co., (1920) 2 KB 478: (1922) All ER Reprint 45 (CA).-contains classic passages on the importance of maintaining the "special case machinery" as part of the English legal system. Even though arbitrators in modern times are more often lawyers than in the past, the utility of this provision empowering the courts to require the arbitrator to state the case for the opinion of the court has been-re-asserted in later English cases.1 In one of his judgments' Lord Denning M.R. dealt with the matter at great length.

He laid down that three requirements had to be fulfilled; first, there had to be a real and substantial point of law suitable for decision by the court, as distinct from a point dependent on the special expertise of the arbitrator or umpire; secondly, the point had to be clear-cut and capable of being accurately stated as a point of law; it must not be merely a matter of fact disguised; and thirdly, the point must be necessary for the proper determination of the case.

In other words, it must not be a mere side issue. On the other hand, the fact that the question was not of general application or was a question of construction or was a question relating to implication or inference from proved facts did not bar a reference. In connection with an insurance policy the High Court of Australia has held that a question of construction could be a question of law.2

1. Halfdan Greig v. Sterling Corporation, (1973) 2 All ER 1073 (1080).

2. New South Wales Rutile Mining Co. Proprietary Ltd. v. Hard Ford Fire Ins. Co., (1972) 46 Australian Law Journal Reports 391.