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Litigation Practice - From: 1930 To: 1959

This page lists 150 cases, and was prepared on 02 April 2018.

 
Bournemouth-Swanage Motor Road and Ferry Co v Harvey and Sons [1930] AC 549; 99 LJ Ch 337; 143 LT 313; 46 TLR 439; 28 LGR 351
1930
HL
Lord Macmillan
Litigation Practice, Transport, Commercial
The company had, under a private Act of Parliament, constructed a jetty and a roadway. They objected to the provision of similar services by the respondents Held: Their appeal failed. An injunction against competition was refused. The Act did not confer on the ferry company an exclusive right of ferry. The respondents had in fact for many years previously carried passengers over a relate route.
After quoting the relevant section Lord Macmillan, with whom the other members of the House concurred, said: "Now this section does not purport to grant a franchise of ferry. It merely empowers the company to establish a ferry service. It imposes no obligation on the company whatever; it does not require the company to provide any service. The terms of the section are permissive not obligatory, enabling not mandatory. If the company chose not to provide a ferry service no member of the public could compel it to do so. In short the position of the company is comparable to that of a railway company which has obtained power to construct and work a new line but is under no obligation to the public either to construct it or to work it when constructed"
1 Cites



 
 Jonesco v Beard; HL 1930 - [1930] AC 298
 
Will v Sneddon Campbell and Munro 1931 SC 164
1931
SCS
Lord Hunter, Lord Justice Clerk Alness
Scotland, Litigation Practice
Lord Hunter said: "It is well settled, no doubt, that, if a man is bankrupt and if he is divested of his estate, he is not entitled to sue an action unless he finds caution. But that is only a general rule; there are exceptions even to that. On the other hand, there is no general rule to the effect that, unless a man has been rendered bankrupt and his estates have been sequestrated, he cannot be ordained by the court to find caution. Even short of bankruptcy, I think there may be circumstances in which a pursuer might be ordained to find caution."
Lord Justice Clerk Alness said that the history of the litigation was an element which could be taken into consideration and that, while none of the considerations in that case might of itself have been sufficient, their cumulative effect seemed to him to justify the order.
1 Citers


 
J C Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282
1931

Dixon J
Litigation Practice, Commonwealth
(High Court of Australia) Dixon J said: "Specific performance is inapplicable when the continued supervision of the Court is necessary in order to ensure the fulfilment of the contract."
1 Citers

[ Austlii ]
 
Hulbert v Thurston [1931] WN 171
1931

Scrutton LJ
Costs, Litigation Practice
In a personal injury action, the infant plaintiff obtained judgment in his favour for damages to be awarded. On appeal that judgment was reversed and judgment was entered in favour of the defendant "with the costs including the costs of this appeal". The costs having been taxed, the defendant's solicitor proposed to issue a writ of fi. fa. against the infant plaintiff's next friend, but was told that that was not possible as no order had been made against him. There followed an application for the order to be amended. Held: When the court had allowed the appeal of the defendant it was asked to order that judgment should be entered for her with costs. That was the order drawn up. "In his opinion the addition now asked for was not one that could be made under the slip rule. That rule was intended for the correction of an order which, as drawn up, did not express that which was decided by the Court. It was quite possible that an order in the terms now asked for might have been made if an application had been made at the time, but no such application was made."

 
Ahamath v Sariffa Umma [1931] AC 799
1931
PC

Litigation Practice
Lord Blanesburgh said: "It must be only under very exceptional circumstances that an issue dropped in the intermediate Court of Appeal and for that reason not dealt with or referred to by that court can be revived before this Board."
1 Citers



 
 United Motor Service v Tropic-aire; 1932 - (1932) 57 F 2d 479

 
 Re Warren; ChD 1932 - [1938] Cl 725; [1932] 1 Ch 42
 
Mabro v Eagle, Star and British Dominions Insurance Co Ltd [1932] 1 KB 485
1932
CA
Scrutton LJ
Litigation Practice, Limitation
Scrutton LJ said: "In my experience the Court has always refused to allow a party or a cause of action to be added where, if it were allowed, the defence of the Statute of Limitations would be defeated. The Court has never treated it as just to deprive a defendant of a legal defence."
1 Citers



 
 Barras v Aberdeen Steam Trawling and Fishing Co; HL 17-Mar-1933 - [1933] UKHL 3; (1933) 45 Ll L Rep 199; [1933] All ER Rep 52; 1933 SC (HL) 21; [1933] AC 402; 1933 SLT 338
 
In re a Bankruptcy Notice [1934] Ch 431
1934
CA
Lord Hanworth MR
Litigation Practice

1 Citers



 
 Hillman's Airways Ltd v SA d'Editions Aeronautiques Internationales; 1934 - [1934] 2 KB 356

 
 Harmer v Armstrong; CA 1934 - [1934] Ch 65
 
Mechanical and General Inventions Co. and Lehwess v Austin and the Austin Motor Co [1935] AC 346
1935
HL
Lord Hanworth MR, Lord Wright
Litigation Practice
Lord Hanworth MR discussed the general nature of cross-examination, saying: "Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness. We desire to say that in our opinion the cross-examination in the present case did not conform to the above conditions and at times it failed to display that measure of courtesy to the witness which is by no means inconsistent with a skilful, yet powerful, cross-examination."
Determining whether the jury verdict was reasonable, does not mean, Lord Wright said: "whether the verdict appears to the appellate court to be right, but whether it is such as to show that the jury have failed to perform their duty" and "For the appellate court to set aside the verdict of a jury as being against the weight of evidence, merely because the court does not agree with it, would, in my judgment, be to usurp the functions of the jury and to substitute their own opinion for that of the jury; that would be quite wrong."
1 Citers


 
Powell v Streatham Manor Nursing Home [1935] AC 243; [1935] All ER 38; (1935) 152 LT 563; (1935) 104 LJKB 304
1935
HL
Lord Macmillan, Viscount Sankey LC, Lord Atkin, Lord Wright
Litigation Practice
Where the Judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal can be: and the appellate tribunal will generally defer to the conclusion which the Trial Judge has formed. However, the probabilities and possibilities of a case may impel an appellate court to depart from the opinion of the trial Judge formed upon his assessment of witnesses whom he has seen and heard in the witness box.
Different meanings can be given to the word "rehearing" even when used in connection with an appeal from one court to another.
Lord Wright said: "I think that it is difficult, if not impossible, to seek to lay down any precise rule to solve the problem which faces the Court of Appeal when it has to act as a judge of fact on the rehearing, but finds itself 'in a permanent position of disadvantage as against the trial judge'. In truth, it is not desirable, in my opinion, to do more than state, as I think Lord Sumner was stating, principles which will guide the appellate Court in the majority of such cases. The problem in truth only arises in cases where the judge has found crucial facts on his impression of the witnesses: many, perhaps most cases, turn on inferences from facts which are not in doubt, or on documents: in all such cases the appellate Court is in as good a position to decide as the trial judge. But where the evidence is conflicting and the issue is one of fact depending on evidence, any judge who has had experience of trying cases with witnesses cannot fail to realize the truth of what Lord Sumner says: as the evidence proceeds through examination, cross-examination and re-examination the judge is gradually imbibing almost instinctively, but in fact as a result of close attention and of long experience, an impression of the personality of the witness and of his trustworthiness and of the accuracy of his observation and memory or the reverse. He will not necessarily distrust a witness simply because he finds him inaccurate in some details: he can give such inaccuracy its proper place, particularly if he sees that the witness is tired, or antagonized, or confused, or perhaps impatient, and especially if the matter of the inaccuracy is of minor or collateral importance. But such inaccuracies may appear in a very different light when pointed to as isolated passages in the shorthand notes and abstracted from the human atmosphere of the trial and from the totality of the evidence. The judge will form his impression from the whole personality of the witness: he can allow for the nervous witness, standing up in a crowded Court or worried by the strain of cross-examination. The judge may be deceived by an adroit and plausible knave or by apparent innocence: for no man is infallible; but in the main a careful and conscientious judge with his experience of courts is as likely to be correct in his impressions as any tribunal, unless perhaps, as some would say, a jury of twelve members is preferable."
1 Cites

1 Citers


 
Assam Railways and Trading Co Ltd v Commissioners of Inland Revenue [1935] AC 445
1935
HL
Lord Wright
Litigation Practice
Parties questioned the admissibility before the House of recommendations of a Royal Commission on Income Tax which had preceded an Act and which counsel for the appellants sought to cite as part of the context of intention of Parliament in relation to a particular section of the Act. Held: Counsel could not make that reference. Lord Wright: "It is clear that the language of a Minister of the Crown in proposing in Parliament a measure which eventually becomes law is inadmissible and the Report of Commissioners is even more removed from value as evidence of intention, because it does not follow that their recommendations were accepted."
1 Citers



 
 Bruce v Odhams Press Ltd; CA 1936 - [1936] 1 KB 697

 
 Warner Brothers Pictures v Nelson; 1936 - [1937] 1 KB 209; [1936] 3 All ER 160; 106 LJKB 97

 
 Re Leguia (No. 2); CA 1936 - (1936) 155 LT 270

 
 Alexander v Rayson; CA 1936 - (1936) 1 KB 169

 
 In re Liddell's Settlement Trusts; CA 1936 - [1936] Ch 365

 
 In re a Debtor; CA 1936 - [1936] Ch 237

 
 Coles v Odhams Press Ltd; 1936 - [1936] 1 KB 416
 
Kevorkian v Burney (No 2) [1937] 4 All ER 468
1937
CA
Greer LJ
Costs, Litigation Practice
When applying for security for costs against a foreign resident plaintiff, it is first for the defendants to show that the plaintiff is resident abroad within Ord. 23, r. 1; secondly, for the plaintiff to show that he has an asset here which will remain here; and, thirdly, for the defendant to show, if he can, that the asset is worthless or not worth sufficient to cover the costs.
1 Citers


 
Evans v Bartlam [1937] AC 473; [1937] 2 All ER 646; (1937) 53 TLR 689
1937
HL
Lord Atkin, Lord Wright
Litigation Practice
Lord Atkin discussed provisions with regard to the setting aside of a judgment obtained in default: "The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure", and: "if the appellate tribunal "sees that on other grounds (i.e. other than grounds of law) the decision will result in injustice being done it has both the power and the duty to remedy it"
Lord Wright said: "It is . . often convenient in practice to lay down, not rules of law, but some general indications, to help the Court in exercising the discretion . ."
1 Citers


 
Evans v Bartram [1937] AC 473
1937
HL
Lord Wright
Litigation Practice
When a defendant seeks to set aside a regular judgment which had been obtained by default, the test for setting it aside is: "In a case like the present there is a judgment, which, though by default, is a regular judgment, and the applicant must show grounds why the discretion to set it aside should be exercised it his favour. The primary consideration is whether he has merits to which the Court should pay heed; if merits are shown the Court will not prima facie desire to let a judgment pass on which there had been no proper adjudication." and "a defendant who is asking the court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success"
1 Citers


 
Millensted v Grosvenor House (Park Lane) Ltd [1937] 1 KB 717; [1937] 1 All ER 736
1937
CA
Farwell J
Litigation Practice
For the negligence of the hotel in upsetting a jug of hot water over her, the judge awarded damages of £50 to the plaintiff, but on the following day, without further argument on that point, he informed the parties that his award had been excessive and would be only £35. She appealed. Held: Until the order of a judge has been sealed he retains the ability to recall the order he has made even if he has given reasons for that order by a judgment handed down or orally delivered.
Farwell J gave guidance as to what a judge should do on mistakenly being informed of a payment into court: "The purpose of the order is obvious, it was made to prevent the premature disclosure of a fact which was not relevant to the issues to be tried, but the disclosure of which might prejudice one or more of the parties to the proceedings. It is to be noticed, that the order makes no express provision for the event of an infringement of the rule. It is, of course, the duty of both judge and counsel to observe the rule, but what is to be done if the rule by inadvertence or otherwise is broken? In my judgment, this is in every case a matter for the trial judge to determine, having due regard to the object for which the rule was made. If he thinks it proper or necessary for the due administration of justice, he may refuse to hear the action any further and direct it to be tried before another tribunal. On the other hand, if he is satisfied that no injustice will be done, he may allow the matter to proceed and if he adopts the latter course, that in itself affords no ground for an appeal from the order which is ultimately made."
1 Citers



 
 A Baily and Co v Clark Son and Morland; HL 1938 - [1938] AC 557
 
Infields Ltd v P Rosen and Son [1938] 3 All E R 591
1938
CA
Sir Wilfred Greene MR, Lloyd LJ
Litigation Practice
Sir Wilfred Greene MR said that reliance on a document was not of itself sufficient to displace legal professional privilege: "In my judgment, the same principle applies here. All that the deponent was doing was saying: "Well, I am asking the court to allow service out of the jurisdiction. I am being frank with the court. I have received certain information from Japan and I believe it provides no defence to the defendants." In other words, he was not relying on the contents of the document: he was relying on the effect of the document. He had to refer to the Japanese lawyers because he was under a duty to give the source of his information and he could only do so by referring to what they had told him."
Lloyd LJ distinguished between reference alone to a document and a quotation of its content: "In some cases it will be hard to draw the line between disclosure of contents and the mere effect of advice"
1 Citers



 
 Greenwood County v Duke Power; 1939 - (1939) 107 F(2d) 484

 
 Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd; 1939 - [1939] 2 All ER 613; [1939] 2 KB 395
 
Hanson v Wearmouth Coal Co Ltd [1939] 3 All ER 47
1939
CA
Goddard LJ
Litigation Practice
The trial judge had found in favour of the first defendant, a coal company, and held the second defendant, a gas company, wholly to blame for the loss incurred by the plaintiff as the result of an explosion caused by a leakage of gas. The second defendant appealed. Held: The Court upheld the judge's decision that the first defendant was wholly to blame.
Goddard LJ however said: "It remains only to notice the argument of counsel for the coal company that, as the plaintiff did not appeal against the judgment entered for the coal company, the appeal of the gas company, in so far as it seeks to have them held liable for contribution, is incompetent. We cannot agree. The gas company were entitled at the trial, by reason of the provisions of the Law Reform (Married Women and Tortfeasors) Act, 1935, to show, if they could, that the coal company were liable in whole or in part for the accident so as to obtain the benefit of indemnity or contribution given by the Act. The duty of the court below was to decide on the rights of the parties at the date of the writ. The Court of Appeal must rehear the case and give the judgment which ought to have been given below, and, if the judgment below should have been that both defendants were liable, so that a right of contribution would arise, this court has power to enter judgment accordingly, even though the plaintiff be content with judgment against one defendant."
Law Reform (Married Women and Tortfeasors) Act 1935
1 Citers


 
Heap v Ind Coope and Allsopp Ltd [1940] KB 476
1940

MacKinnon LJ
Litigation Practice
MacKinnon LJ said: "The law as it stands does permit me to give effect to common-sense and decency."
1 Citers


 
Aberdeen Varieties Ltd v James F Donald (Aberdeen Cinemas) Ltd [1940] UKHL 4; 1940 SLT 374; 1940 SC (HL) 52
2 Jul 1940
HL

Scotland, Litigation Practice

[ Bailii ]
 
Cumper v Pothecary [1941] 2 KB 58
1941

Goddard LJ
Litigation Practice
The court considered the nature of a payment into court: "there is nothing contractual about payment into court. It is wholly a procedural matter and has no true analogy to a settlement arranged between the parties out of court, which, of course, does constitute a contract." The defendant must show that good reason for his application, such as the discovery of further evidence which puts a wholly different complexion on the case or a change in legal outlook brought about by a new judicial decision. Apart from matters such as fraud or mistake affecting the original payment, the court should consider whether there is a sufficient change of circumstance since the money was paid to make it just that the defendant should have an opportunity of withdrawing or reducing his payment.
1 Citers


 
Lawrie v Raglan [1942] 1 KB 152
1942
CA
Lord Greene MR
Litigation Practice
The court considered the obligation on a judge to put a defendant to his election before hearing a submission on whether there was a case to answer. It was unfortunate that the judge had not followed the practice "which ought to be followed in such cases, as has been quite clearly laid down in this court, of refusing to rule on the submission unless counsel for the defendant said he was going to call no evidence. That must be regarded as the proper practice to follow."
1 Citers


 
Joseph Constantine SS Line Ltd v Imperial Smelting Corp Ltd [1942] AC 154
1942

Visc. Maugham
Litigation Practice
Before a court, he who asserts something must must prove it: "Ei qui affirmat non ei qui negat incumbit probatio"
1 Citers


 
Blunt v Park Lane Hotel Ltd [1942] 2 KB 253
1942
CA
Goddard LJ
Litigation Practice
The court considered the rule against self incrimination. Lord Justice Goddard said: "The rule is that no one is bound to answer any questions if the answer thereto would, in the opinion of the judge, have a tendency to expose the defendant to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be incurred." The right to decline to answer must be plain in respect of the answer to each question and must be considered by the judge each time it is raised. Sometimes a question may not apparently raise any rational response of self-incrimination and the court must be satisfied that the answer would or might tend to criminate.
1 Citers



 
 Re Inchcape; 1942 - [1942] Ch 394
 
London Passenger Transport Board v Moscrop [1942] AC 332
1942
HL
Lord Maugham
Litigation Practice
Lord Maugham said: "the courts have always recognized that persons interested are or may be indirectly prejudiced by a declaration made by the court in their absence, and that, except in very special circumstances, all persons interested should be made parties before a declaration by its terms affecting their rights is made."
1 Citers



 
 Duncan v Cammell, Laird and Company Limited (Discovery); HL 27-Apr-1942 - [1942] AC 624; [1942] UKHL 3

 
 Duncan v Cammell, Laird and Company Limited (Discovery); HL 27-Apr-1942 - [1942] AC 624; [1942] UKHL 3
 
Stotesbury v Turner [1943] KB 370
1943


Litigation Practice, Arbitration
Without prejudice negotiations are, as a matter of public policy, to be protected from disclosure to the court seized of the dispute. An arbitrator has the same discretion as to costs as has a High Court judge.
1 Cites

1 Citers


 
Equity and Law Life Assurance Society v Tritonia Ltd 1943 SC (HL) 88
1943
HL
Viscount Simon LC
Scotland, Company, Litigation Practice
Viscount Simon LC said: "When an appeal is argued before the House of Lords, no one has any right of audience except counsel instructed on behalf of a party or (when the litigant is a natural person) the party himself. In the case of a corporation, inasmuch as the artificial entity cannot attend and argue personally, the right of audience is necessarily limited to counsel instructed on the corporation's behalf . . Such a rule limiting a right of audience on behalf of others to members of the English or Scottish or Northern Irish bars, secures that the House will be served by barristers or advocates who observe the rules of their profession, who are subject to a disciplinary code, and who are familiar with the methods and scope of advocacy which are followed in presenting arguments to this House".
1 Citers



 
 Amand v Home Secretary and Minister of Defence of Royal Netherlands Government; HL 1943 - [1943] AC 147; [1942] 2 All ER 381

 
 Carltona Ltd v Commissioners of Works; CA 1943 - [1943] 2 All ER 560

 
 Craig v Kanssen; CA 1943 - [1943] 1 KB 256; [1943] 1 All ER 108
 
Sovracht (V/O) v Van Udens Scheepvaart en Agentuur Maatshappij [1943] AC 203
1943


Litigation Practice
The rule that an enemy alien may not prosecute an action is based on public policy, namely the need for the protection of the state in time of war.
1 Citers


 
Hollington v E Hewthorn and Co Ltd [1943] KB 587
1943
CA

Litigation Practice, Evidence
Decisions of an earlier tribunal were not binding or admissible in later proceedings where the earlier proceedings were before a court of criminal jurisdiction. Evidence of a prior conviction would not have been admissible in separate criminal proceedings to establish the truth of the underlying allegation. It was res inter alios acta.
1 Citers



 
 Yuill v Yuill; CA 1944 - [1944] P 15; [1945] All ER 183
 
Adams v Naylor [1944] 2 All ER 21; [1944] KB 750
1944
CA

Litigation Practice
The court considered the practice of appointing a substitute defendant against whom damages could be awarded, ie to get around crown immunity.
1 Citers


 
Ingall v Moran [1944] KB 160
1944
CA
Scott LJ
Limitation, Litigation Practice
The plaintiff had issued a writ in 1942 as administrator of his deceased son’s estate. However, he did not take out letters of administration until the November. It was said that proceedings instituted by an applicant who at the time had no standing to institute those proceedings were an incurable nullity. The limitation period had by then expired. Held. The grant did not date back to the date of death, and it was too late to issue fresh proceedings or to amend.
Scott LJ said: "The cause of action arose, and was vested in the deceased lad, at the moment when he was injured, and the measure of his damages included fair compensation for such loss of expectation of life as was caused to him by the defendant's tort. That chose in action was his. To it the common law maxim "Actio personalis moritur cum persona" would have applied on his death but for the Act of 1934 which caused it to survive. If he had left a will, it would at the moment of his death automatically have vested in his executor. As he died intestate, it vested in the President of the Probate, Divorce and Admiralty Division, and remained in him until letters of administration were issued. Then - and not before - it would automatically pass from the President to the administrator. As the writ was issued on September 17, 1942, and there was no grant till November, it follows, necessarily, that at the time of writ issued the plaintiff had no shadow of title to his son's surviving chose in action, in respect of which he purported to issue a writ, falsely (although no doubt quite innocently) alleging that he issued it as administrator. It purported to launch a representative action under Or. III, r. 4 - an action in which he confessed, first, that he was not suing in his own right, and, secondly, that he had no right in that action to prosecute any claim except in his representative capacity. The defendant could have demanded production of the non-existent letters of administration, and on the plaintiff's failure to produce them the action would, on the defendant's application, automatically have been struck out. Such an action was, in my opinion, incapable of conversion by amendment into a valid action - just as much so as if he had issued a personal writ claiming to be lawfully possessed of the estate of the deceased and had subsequently asked leave to amend by substituting a representative claim. It is true that when he got his title by the grant of administration he prima facie became entitled to sue, and could then have issued a new writ, but that was all. An application by him to treat the original writ of September 17 as retrospectively valid from that date would have been refused by the court, not only because it might prejudice existing rights of defence, but because it would not be permissible under the Rules of the Supreme Court or the Judicature Acts. The old writ was, in truth, incurably a nullity. It was born dead and could not be revived. If that conclusion is right it follows equally that the statement of claim was not delivered in any action recognized by the Rules of the Supreme Court, and all subsequent proceedings in the supposed action, including the judgment of the learned county court judge, were likewise nugatory, for, if the action and the pleadings were bad, there was no valid action before the learned judge to try and it is our duty to say so."
Law Reform (Miscellaneous Provisions) Act 1934
1 Citers



 
 Allen v Emmerson; KBD 1944 - [1944] 1 All ER 344

 
 Richardson v Redpath Brown and Co Ltd; HL 1944 - [1944] AC 62; [1944] 1 All ER 110; 36 BWCC 259
 
Sun Life Assurance Co of Canada v Jervis [1944] AC 111
1944
HL
Viscount Simon LC
Litigation Practice
The parties had disputed the terms of an insurance policy. The House considered whether it could hear the case once the dispute had been settled. Held: There was no remaining dispute for the House to settle. Viscount Simon LC said: "My Lords, in my opinion, the House should decline to hear this appeal on the ground that there is no issue before us to be decided between the parties. I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. If the House undertook to do so, it would not be deciding an existing list between the parties who are before it, but would merely be expressing its view on a legal conundrum which the appellants hope to get decided in their favour without in any way affecting the position between the parties.
What is sometimes called a "friendly action" is not necessarily open to this objection, either in the first court or on appeal, for the respective parties in such an action are arguing for different results and the winner gains something which he would not gain if he lost, but the objection here is that, if the appeal fails, the respondent gains nothing at all from his success. . .
I think it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue."
1 Citers



 
 Upper Agbrigg Assessment Committee v Bents Brewery Co; PC 1945 - [1945] 1 KB 196
 
Battersby v Anglo-American Oil Co Ltd [1945] KB 23
1945
CA

Litigation Practice
Lord Goddard said: "ordinarily it is not a good reason that the plaintiff desires to hold up the proceedings while some other case is tried or to await some future development".

 
Royster v Cavey [1946] 2 All ER 642; [1947] KB 204
1946
CA
Scott, Buckhill LJJ
Constitutional, Personal Injury, Litigation Practice
The plaintiff sought damages after being injured on her way to work. The Crown nominated the superintendent of a factory in which the plaintiff was injured as its occupier in order to allow the claim which would otherwise have failed for Crown privilege. The court below had refused to allow this fiction. Held: The plaintiff's appeal failed. Crucial admissions on which the case had been conducted at first instance should not be accepted, because they were contrary to fact.
Scott LJ said: "As a matter of fact . . the defendant so named had nothing whatever to do with the accident; he was not the occupier of the premises; he had not been guilty of any negligence, nor of any breach of statutory duty under the Act. Those allegations, that he did occupy that position and was so guilty, were accepted by the defence to the extent of not raising the question of his personal position."
Buckhill LJ said: "The result is, in my view, that this court cannot pronounce judgment against a defendant when in truth and in fact he is not under any liability at all."
1 Cites

1 Citers



 
 Ex Parte Lewin; In re Ward; 1946 - [1964] NSWR 446; 80 WN (NSW) 1527
 
Wilson v Chatterton [1946] 1 KB 360
1946
CA
Scott LJ
Constitutional, Litigation Practice
The court considered the circumstances under which it could depart from its previous decision. Scott LJ said that it might be allowed on the basis of the earlier decision "being inconsistent with general principles laid down by the House of Lords and with other decisions of this Court."
1 Cites

1 Citers


 
Adams v Naylor [1946] 2 All ER 241; [1946] AC 543
1946
HL
Lord Simonds
Litigation Practice, Torts - Other
The House disapproved of the practice of appointing a nominee defendant in tort actions against whom damages could be awarded as opposed to a party with crown immunity. The House refused to entertain a claim against a nominated army officer arising from injuries which children had sustained in a derelict minefield.
1 Cites

1 Citers



 
 Vander Poorten and Others v The Settlement Officer; PC 13-Mar-1946 - [1946] UKPC 7; [1946] AC 271
 
Watt (or Thomas) v Thomas [1947] AC 484; 1947 SC (HL) 45
1947
HL
MacMillan L, Lord Thankerton, Viscount Simon
Administrative, Litigation Practice, Family
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: "(1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion. (2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court."
. . And: "So far as the case stands on paper it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of profound importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone plainly wrong.
. .If the case on the printed evidence leaves the facts in balance, as it may be fairly said to do, then the rule enunciated in this House applies and brings the balance down on the side of the trial judge."
Lord Thankerton sad: "It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question. It will hardly be disputed that consistorial cases form a class in which it is generally most important to see and hear the witnesses, and particularly the spouses themselves;"
Viscount Simon said: "If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight."
Viscount Simon said: "an appellate Court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate Court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given".
1 Cites

1 Citers


 
Williams v Glasbrook Brothers Ltd [1947] 2 All ER 884
1947
CA
Lord Greene MR, Cohen and Asquith LJJ
Litigation Practice
It was not open to the Court of Appeal to review a previous decision of the same Court for conformity with an earlier decision of the House of Lords (Lord Greene MR). It was for the House of Lords to correct the previous Court of Appeal's error, and not a function open to the Court of Appeal in a later case.
1 Citers


 
Huddersfield Police Authority v Watson [1947] KB 842
1947

Lord Goddard CJ
Litigation Practice
A judge at first instance is bound by a decision of a Divisional Court.
1 Citers


 
Apley Estates Company Limited v De Bernales and Others [1947] 1 Ch 217
1947


Litigation Practice
The parties had settled their original dispute on terms including that: "the plaintiffs in the said actions will not nor will any of them sue or continue to sue the said defendants in respect of any of the matters the subject matter of the said actions or either of them . . but this agreement shall not be construed or operate as a release of any cause of action of the plaintiffs or any of them against the defendants or any of them in the said actions." Held: This was not a release of the plaintiffs.
1 Citers


 
British Fame v MacGregor ('The MacGregor') [1943] AC 197; [1943] 1 All ER 33
1947
HL
Viscount Simon, Lord-Chancellor
Damages, Litigation Practice
Two ships had collided. One party sought to appeal the apportionment of damages. Held: The House considered the reluctance of an appellate court to interefere with an apportionment of damages applied by the court at first instance: "It seems to me, my Lords, that the cases must be very exceptional indeed in which an appellate court, while accepting the findings of fact of the court below as to the fixing of blame, none the less has sufficient reason to alter the allocation of blame made by the trial judge. I do not say that there may not be such cases. I apprehend that, if a number of different reasons were given why one ship is to blame, but the Court of Appeal, on examination, found some of those reasons not to be valid, that might have the effect of altering the distribution of the burden. If the trial judge, when distributing blame, could be shown to have misapprehended a vital fact bearing on the matter, that, I think, would be a reason for considering whether a change in the distribution should be made on appeal. But, subject to rare exceptions, I submit to the House that, when findings of fact are not disputed and the conclusion that both vessels are to blame stands, the cases in which an appellate tribunal will undertake to revise the distribution of blame will be rare."
1 Citers



 
 Greenhalgh v Mallard; CA 1947 - [1947] 2 All ER 255
 
Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343
1948
CA
Asquith LJ
Family, Litigation Practice
The court considered the role of the appeal court in assessing an order for maintenance payable for a divorced wife. The judge's decision had been made by an exercise of his discretion. Held: Asquith LJ said: "It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere."
1 Citers



 
 McTaggart v McTaggart; 1948 - [1948] 2 All ER 754

 
 Saltman Engineering Co v Campbell Engineering Co Ltd; CA 1948 - [1948] 65 RPC 203
 
Alterskye v Scott [1948] 1 All ER 469
1948

Jenkins J
Litigation Practice
The obligation of confidentiality for documents disclosed during litigation discovery includes a duty being: "the implied undertaking, under which a party obtaining discovery is, not to use documents for any collateral or ulterior purpose."
1 Cites

1 Citers


 
S Kaprow and Co Ltd v Maclelland and Co Ltd [1948] 1 KB 618
1948
CA
Wrottesley LJ
Litigation Practice
The court considered the circumstances necessary to support an application to set a judgment aside: "Unless the court intervenes to relieve the plaintiffs from the position in which they are under their pleading, they will be deprived of the opportunity of putting forward their claim for loss of profit. There is, I think, no doubt that in a proper case and on proper terms the court may, in its discretion, relieve a party, who comes quickly, from the effect of his, or his legal advisers' mistake; and this applies whether he is plaintiff or defendant."
1 Cites

1 Citers



 
 In re Waring, Westminster Bank v Burton-Butler; ChD 1948 - [1948] Ch 221
 
In re Wareing [1948] Ch 221
1948

Jenkins J
Litigation Practice
A decision of the House of Lords had established that an earlier decision of the Court of Appeal on the liability of certain annuities to tax was wrong. Held: The decision of the Court of Appeal nevertheless continued to bind the annuitant who had been party to it. It did not, by contrast, bind the annuitant who had not been a party.
1 Citers


 
Cutler v Wandsworth Stadium Ltd [1949] AC 398
1949
HL
Lord Simonds, Lord Reid
Damages, Litigation Practice
The Act required the occupier of a licensed racetrack to take all steps necessary to secure that, so long as a totalisator was being lawfully operated on the track, there was available for bookmakers space on the track where they could conveniently carry on bookmaking in connection with dog races run on the track on that day. Breach of this provision carried a criminal sanction. A bookmaker who contended that he had not been provided with suitable space brought a claim for an injunction and damages against the operator of the track. His claim succeeded in the High Court but not in the Court of Appeal. Held: The bookmaker's appeal failed. There is a general rule of law that where a new statutory obligation is created which at the same time provides a special means of enforcing it, that performance cannot be enforced in any other manner. A law which was not intended to create legal rights and duties would be a mere 'pious aspiration'. On a proper construction of the particular statute, there was no parliamentary intention to confer private rights of action on bookmakers at a racetrack: the intended enforcement of rights was by means of criminal prosecution.
Lord Simonds said: "I do not propose to try to formulate any rules by reference to which such a question can infallibly be answered. The only rule which in all circumstances is valid is that the answer must depend upon a consideration of the whole Act and the circumstances, including the pre-existing law in which it was enacted. But that there are indications which point with more or less force to the one answer or the other is clear from authorities which, even where they do not bind, will have great weight with the House. For instance, if a statutory duty is prescribed but no remedy by way of penalty or otherwise for its breach is imposed, it can be assumed that a right of civil action accrues to the person who is damnified by the breach. For if it were not so, the statute would be but a pious aspiration." and "As I have mentioned, sub-contractors experiencing undue delay would be able to enforce performance of the Revenue's duty by an application for judicial review. The absence of a financial remedy for past losses does not deprive the statutory duty of substance."
Lord Reid said: "I find it extremely difficult to reconcile the nature of the provisions of this sub-section with an intention to confer on individual bookmakers rights which each could enforce by civil action. If the legislature had intended to create such rights I would expect to find them capable of reasonably precise definition."
Betting and Lotteries Act 1934 11(2)(b)
1 Citers


 
Braddock v Tillotsons Newspapers Ltd [1949] 2 All ER 306; [1950] 1 KB 47
1949
CA
Tucker LJ
Litigation Practice

1 Citers



 
 Barkway v South Wales Transport; CA 1949 - [1949] 1 KB 54; [1950] 1 All ER 392
 
Barkway v South Wales Transport [1950] AC 185; [1950] 1 All ER 392; [1950] WN 95
1950
HL
Lord Porter, Lord Radcliffe, Lord Normand
Litigation Practice, Evidence
The doctrine of res ipsa loquitur should not be used where the judge has presented to him alternate versions of the facts and his job is to decide between them.
Lord Radcliffe said that an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence.
Lord Normand said: "the fact that an omnibus leaves the roadway and so causes injury to a passenger or to someone on the pavement is evidence relevant to infer that the injury was caused by the negligence of the owner, so that, if nothing more were proved, it would be a sufficient finding of liability against him."
As to the doctrine of res ipsa loquitur: "The maxim is no more than a rule of evidence affecting onus. It is based on commonsense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant."
1 Cites

1 Citers



 
 Bater v Bater; CA 1950 - [1950] 2 All ER 458
 
Magor and St Mellons Rural District Council v Newport Corporaion [1950] 2 All ER 1226
1950
CA
Lord Denning
Litigation Practice
Lord Denning considered the strict interpretation rule: 'We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of Parliament and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis'
1 Citers



 
 American Economic Laundry Ltd v Little; CA 1950 - [1950] 2 All ER 1186; [1951] 1 KB 400

 
 Ex parte Greenbaum; 1951 - (1951) 55 Knight's LGR 129
 
Biggin v Permanite [1951] 1 KB 422
1951

Devlin J
Litigation Practice
Devlin J discussed what a party must do to bring evidence to support his claim: "Where precise evidence is obtainable, the court naturally expects to have it [but] where it is not, the court must do the best it can."
1 Citers


 
Magor and St Mellons Rural District Council v Newport Corporaion [1951] 2 All ER 839; [1952] AC 189
1951
HL
Lord Simonds
Litigation Practice
The Court of Appeal had tried to fill in the gaps in a statute where parliament had intended an effect. Held: Rights to compensation are well capable of falling within the definition of "property of a company" in the relevant provisions of the Corporations Law. The courts should "construe very narrowly any substantive or procedural barriers against having recourse to courts for the rectifying of wrongs". However, in the construction of a statute the duty of the court is limited to interpreting the words used by the legislature and it has no power to fill any gaps disclosed. To do so would be to usurp the function of the legislature. Referring to the speech of Lord Denning MR, Lord Simonds said that: "It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation."
Lord Simonds said:"The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited. If a gap is disclosed, the remedy lies in an amending Act and not in a ‘usurpation of the legislative function under the thin disguise of interpretation’.”
1 Cites

1 Citers


 
Tombling v Universal Bulb Co [1951] 2 TLR 28
1951
CA

Legal professions, Litigation Practice
Denning LJ said: "The duty of counsel to his client in a civil case - or in defending an accused person - is to make every honest endeavour to succeed. He must not, of course, knowingly mislead the Court, either on the facts or on the law, but, short of that, he may put such matters in evidence or omit such others as in his discretion he thinks will be most to the advantage of his client. So also, when it appears to him to help his client towards winning his case. The reason is because he is not the judge of the credibility of the witnesses or of the validity of the arguments. He is only the advocate employed by the client to speak for him and present his case, and he must do it to the best of his ability, without making himself the judge of its correctness, but only of its honesty."
1 Citers


 
Rex v Minister of Town and Country Planning, Ex parte Montague Burton Ltd [1951] 1 KB 1
1951
CA
Tucker, Asquith, Jenkins LJJ
Litigation Practice, Constitutional
Section 37 of the 1889 Act provided that where an Act was not to come into operation immediately, and it conferred power to make regulations or other instruments for the purposes of the Act, that power could be exercised at any time after the passing of the Act, "so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof". The term "commencement" was defined by section 36 as meaning "the time at which the Act comes into operation". Held: The power conferred by section 37 was not confined to bringing the Act "into operation" in the sense of bringing it into legal force, but extended to taking measures which would enable the Act to operate in practice. Section 37 gave power to take the necessary steps to set up the machinery for bringing the Act into operation as well as for doing such an act as appointing a day for the Act to come into operation.
Interpretation Act 1889 37
1 Citers


 
Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869
1951

Lord Radcliffe, Lord Simonds
International, Litigation Practice
The ordinary principles of international comity were invaded when courts permitted service out of jurisdiction and that the courts should therefore approach with circumspection any application for leave to serve a foreigner out of the jurisdiction. It is an 'exhorbitant jurisdiction', and should be ‘exercised with caution and with a bias against invading the sovereignty of a foreign State’ (Lord Simonds). A master or judge may on some occasions be obliged to assess the relative strength of the parties' cases. In doing so, he does not try the case on the affidavits, because he reaches only a provisional conclusion: the stage for trial and for final decision has not been reached. But he must have regard to all the admissible material before him not just the plaintiff's case. He must conclude that there is a good arguable case (Lord Simonds), not just a case that can be argued, or a strong argument (Lord Radcliffe).
Lord Radcliffe said: "It seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge. Commercial court judges are very experienced in these matters. In nearly every case evidence is on affidavit by witnesses of acknowledged probity. I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of Lord Goff in this case in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days. An appeal should be rare and the appellate court should be slow to interfere."
1 Citers


 
Dellenty v Pellow [1951] 2 KB 858; [1951] 2 All ER 716
1951


Litigation Practice, Housing
The payment off of arrears of rent will not necessarily prevent an order for possession being made where there is a history of arrears and poor payment.
1 Citers


 
Cristel v Cristel [1951] 2 KB 725
1951
CA
Sommervell LJ, Denning LJ
Litigation Practice
H and W settled a dispute with an agreement for possession of the matrimonial home to be suspended until H provided suitable alternative accommodation. The order gave liberty to apply. H wished to vary the order as to the type of accommodation which had to be provided. Held: The liberty to apply did not allow for the variation of the order in the manner applied for.
Sommervell LJ spoke as to the scope of the express liberty to apply: "'Liberty to apply' is expressed, and if not expressed will be implied, where the order drawn up is one which requires working out, and the working out involves matters on which it may be necessary to obtain the decision of the court. Prima facie, certainly, it does not entitle people to come and ask that the order itself shall be varied."
Denning LJ said: "If there were an unforeseen change of circumstances, for instance, if the wife were left by will another house, or if she took an adulterer to live with her in this house, I should have thought that the 'Liberty to apply' would enable the court to remedy the position."
1 Citers


 
East End Dwelling Co Ltd v Finsbury Borough Council [1952] AC 109
1952
HL
Lord Asquith of Bishopstone
Litigation Practice
The house was asked whether a hypothetically rebuilt block of flats would have been subject to the Rent Restriction Acts. Held: Lord Asquith said: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
1 Citers


 
Usher v Barlow [1952] Ch 255; (1952) 69 RPC 27
1952
CA
Lord Eversed MR, Jenkins, Morris LJJ
Intellectual Property, Litigation Practice, Constitutional
A wall plaque was published before 1950. Its design was an original artistic work but was produced for the purpose of reproduction by an industrial process. It was not registered as an industrial design under the applicable designs legislation because the Comptroller of the Patents Office would not register wall plaques as designs under the Patents and Designs Acts 1907 to 1919. The 1949 Act came into effect on Jan 1 1950. The Board of Trade made rules under that Act which came into operation on 2 January 1950. By rule 26 wall plaques were excluded from registration as designs under the Act. The rules were made pursuant to section 1(4) of the Act which empowered the Board of Trade to make rules excluding from registration, designs for articles which were literary or artistic in character. Held: The judgment at first instance was upheld.
the reference in s. 22 of the 1911 Copyright Act to the Patents and Designs Acts 1907 to 1919 was, after the coming into operation of the 1949 Act, to be read as a reference to the 1949 Act. It followed that copyright in the wall plaque subsisted because the 1949 Act and the rules made thereunder prevented the registration of the plaque as a design. It was not then capable of registration.
Lord Evershed MR said that section 37 of the 1889 Act extended to something more than that which was requisite to enable the Act to come into operation at all: it covered such steps as would be required to enable the Act to operate effectively.
Jenkins LJ, with whose judgment Morris LJ agreed, observed that "operation" was used in section 37 in two different senses, namely the sense in which it appeared in the definition of "commencement" and the sense of "effective operation". The section should be construed as extending to whatever was necessary or expedient for the purpose of bringing the Act into effective operation, in the second sense, at the time when it came into operation, in the first sense.
Interpretation Act 1889 - Registered Designs Act 1949
1 Citers



 
 Hadkinson v Hadkinson; CA 1952 - [1952] P 285; [1952] FLR 287
 
Faryna v Chorny [1952] 2 DLR 354
1952

Justice O'Halloran
Litigation Practice
When a finding of fact depends on a matter such as the logical consistency of the evidence rather than the manner of the witness, an appellate court may be more readily willing to reject a finding of a specific fact.
Justice O'Halloran said: "But the validity of evidence does not depend in the final analysis on the circumstance that it remains uncontradicted, or the circumstance that the Judge may have remarked favorably or unfavorably on the evidence or the demeanor of a witness; these things are elements in testing the evidence but they are subject to whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time; and cf. Brethour v. Law Society of B.C., [1951] 2 D.L.R. 138 at pp. 141-2.
If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet 1919 CanLII 11 (SCC), (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295.
A witness by his manner may create a very unfavorable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.
In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth" is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.
The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case."
1 Citers


 
Jamieson v Jamieson 1952 SC (HL) 44
1952
HL
Lord Normand, Lord Reid
Litigation Practice
The house discussed the test for relevancy of a pursuer's averments. Held: A case should only be dismissed on grounds of relevancy and specification if it would necessarily fail at proof.
Lord Normand: "The true proposition is that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments are proved."
Lord Reid: "If it can be shown that, even if the pursuer succeeds in proving all that he avers, still his case must fail, it appears to me to be highly advantageous that time and money should not be spent on fruitless inquiry into the facts…."
1 Citers


 
DC Thompson and Company Ltd v Deakin and others [1952] EWCA Civ 5; [1952] Ch 646; [1952] 2 All ER 361; [1952] 2 TLR 105
26 Jun 1952
CA
Evershed MR, Jenkins, Morris LJJ
Litigation Practice

[ Bailii ]
 
Barnes v Jarvis [1953] 1 WLR 649; [1953] 1 All ER 1061
1953

Lord Goddard CJ
Litigation Practice
Lord Goddard CJ said: "A certain amount of common sense must be applied in construing statutes. The object of the Act has to be considered."
1 Citers


 
Chantry Martin v Martin [1953] 2 QB 286; [1953] 2 All ER 691; [1953] 3 WLR 459
1953
CA
Jenkins LJ
Litigation Practice
The court was asked as to working papers brought into existence by chartered accountants in the preparation of an audit of a client's books. Held. Those working papers were the property of the chartered accountants and not the client. Jenkins LJ said: "Even in the case of a solicitor there must, we should have thought, be instances of memoranda, notes, etc., made by him for his own information in the course of his business which remains his property, although brought into existence in connection with work done for clients."
1 Citers


 
Grimshaw v Dunbar [1953] 1 QB 408
1953
CA
Jenkins LJ, Morris LJ and Roxburgh J
Litigation Practice
A tenant wanted to defend a possession claim brought by his landlord for rent arrears. Having discharged the arrears, he was told by court staff that he need not attend the hearing. He didn't and the possession order was made in his absence. he sought to set it aside, asking for a re-trial. That application was dismissed but he appealed. Held: His appeal succeeded. The court set out the applicable principles. Jenkins LJ mentioned three factors which he regarded as "some of the main considerations" that a judge exercising a discretion whether or not to re-instate struck-out proceedings should take into account.
The court should consider why the litigant had failed to appear, referring to "the undisputed statement of the tenant . . that his absence was due to the wrong advice . . from one of the officials of the court" The official had "unwittingly misled him". Second, the court should consider any undue delay by the absent party in seeking re-instatement. Third, the court should ask itself whether the other party would be prejudiced by the re-instatement of the proceedings. Morris LJ and Roxburgh J agreed.
Morris LJ,: "it seems to me that the tenant showed a very compelling explanation for his non-attendance at the hearing . . He had never been heard: his case had never been before the judge. This was not the fault of the landlord; but in the particular circumstances the tenant had this rather unusual but satisfactory explanation, the accuracy of which was apparently not doubted. That being so, is seems to me that, in the absence of some very good reason, the application for a new trial should have been acceded to; and I think further that, in the absence of some such good reason, not to accede to the application involved proceeding on a wrong principle in such as way as to amount to an error in law." and " . . if . . it is quite manifest to a judge that there is really nothing to be tried, or if there are some special circumstances which make it clear that on a rehearing the same result as that already announced must again be reached, then it may well be that a judge could refuse an application."
Jenkins LJ also referred to "a more debatable point", namely, "how far the judge should consider the prospects of success" of the party applying for the re-instatement of the proceedings, saying: " . . a new trial should seldom, if ever, be refused merely on the ground that the applicant's case appears to be a weak one . . " and " . . common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case . . "
1 Citers



 
 Packer v Packer; 1953 - [1953] 2 All ER l27

 
 Baker v Market Harborough Co-Operative Society Ltd; CA 1953 - [1953] 1 WLR 1472

 
 Bray v Palmer; CA 1953 - [1953] 1 WLR 1455

 
 Pilkington v Wood; 1953 - [1953] 1 Ch 770

 
 Boyer v Warbey; CA 1953 - [1953] 1 QB 234

 
 Macnaughton v Macnaughton's Trustees; IHCS 1953 - [1953] SC 387
 
Finnegan v Cementation Co Ltd [1953] 1 QB 688; [1953] 1 All ER 1130
1953
CA
Singleton LJ
Litigation Practice
The plaintiff had obtained Letters of Administration in Southern Ireland only but sought to bring an action under the Fatal Accidents Act in England. There were two separate bases upon which the plaintiff (the widow of a workman killed in a work accident) could claim. She could either sue as the representative of his legal estate – that is as administratrix – or alternatively she had a statutory entitlement as the widow of the deceased to sue in her own right. Different combinations of fact had to be pleaded and proved depending upon which cause of action was elected. It is for that reason that the capacity which she sued in was critical. Held. The action had been brought in a representative capacity which the plaintiff did not possess, and must be set-aside on the ground of incompetence. Singleton LJ lamented "that these technicalities are a blot on the administration of the law, and everyone except the successful party dislikes them".
1 Citers


 
McLeod v Glasgow Western Hospitals 1954 SC 453
1954

Lord President Cooper
Litigation Practice

1 Citers


 
Wimpey (George) Co Ltd v British Overseas Airways Corporation [1955] AC 169; [1954] 3 WLR 932; [1954] 3 All ER 661
1954
HL
Lord Reid, Lord Keith of Avonholm, Viscount Simonds, Lord Porter
Litigation Practice, Torts - Other, Damages, Limitation
A joint tortfeasor could escape liability in contribution proceedings if it had been unsuccessfully sued by the injured person in an action brought outside the relevant limitation period. Where a court has to decide between two competing cases, if the arguments are fairly evenly balanced that interpretation should be chosen which involves the least alteration of the existing law.
An employee of BOAC, had been injured in a collision between a vehicle owned by BOAC and another owned by Wimpey. He sued Wimpey, who now claimed a contribution against BOAC. The claimant later joined BOAC, but outside a special one year limitation period under the 1939 Act. The judge had found BOAC one third liable, but that they then escaped liability, the claim against them being time barred. At the Court of Appeal LLJ Denning and Singleton compared the situation with that of co-sureties, and that a six year period applied. Held: The decision and discussion was limited firmly to the point of statutory construction under section 6(1)(c) of the 1935 Act.
Viscount Simonds: "My Lords, at the hearing of the action and of the appeal two questions were raised, upon which there was no argument before your Lordships, the first as to the date upon which Wimpeys' right to contribution arose and the second as to the period of limitation in respect of a claim for contribution against a public authority under section 21 of the Limitation Act, 1939. I am content to assume that the right to contribution arose at any rate not earlier than the date when the existence and amount of Wimpeys' liability to Littlewood was ascertained by judgment and that the relevant period of limitation was six years." The concept of being "held liable" by a judgment for the purpose of setting time running in a claim for contribution involved the ascertainment of the quantum of the liability.
Lord Porter: "The quantum having been determined, the only question is: can the party against whom judgment has been given recover contribution from the other who was in part the cause of the injury?" and "Substantially, their view was that Wimpeys were under no liability until judgment was given against them, that their cause of action arose then and not until then, and accordingly their cause of action against B.O.A.C. arose at that date. I need not, I think, set out the authorities and reasoning upon which these opinions are founded except to refer to such cases as Wolmershausen v. Gullick and Robinson v. Harkin, both of which were claims to contribution between co-sureties, and M'Gillivray v. Hope, which was a claim involving the right of present and former employers to contribution inter se in respect of damages awarded to a workman employed by them consecutively.
If this view be true, Wimpeys' liability did not come into existence until judgment had been given against them, and therefore they had whatever was the appropriate period of limitation from that date. What that appropriate period may be – whether it is a year because B.O.A.C. is a public authority and the action is brought in respect of any act, neglect or default or whether it is six years, because the claim is not in respect of any act, neglect or default, but for contribution – is immaterial in the present case inasmuch as Wimpeys made their claim to contribution in the original action before judgment was given."
Lord Keith of Avonholm: "My Lords, your Lordships are not now concerned with a question which was considered in the courts below, namely, when the cause of action in the claim for contribution accrued. It is conceded, in conformity with the view taken by the Court of Appeal, that the cause of action accrued at earliest at the date when judgment was given in favour of Littlewood against the appellants."
Law Reform (Married Women and Tortfeasors) Act 1935 - Limitation Act 1939 21
1 Cites

1 Citers



 
 Rabin v Mendoza and Co; CA 1954 - [1954] 1 WLR 271; [1954] 1 All ER 247
 
Smith and others v Cardiff Corporation (No.1) [1954] 1 QB 210
1954
CA
Sir Raymond Evershed MR
Litigation Practice
Four plaintiffs set out to represent 13,000 tenants, and sought to challenge a proposed rent increase. The scheme they sought to challenge provided for different rents taking into consideration the financial circumstances of individual tenants. Of the tenants the rents of only 8,000 would be increased. Held. The plaintiffs did not meet the requirements for a representative action, because the class of corporation tenant did not have a common interest or grievance and the relief sought was not in its nature beneficial to all members of the class which the plaintiffs claimed to represent. Sir Raymond Evershed MR set out the test under Order 16 r 9, "It must be shown . . that all the members of the alleged class have a common interest, that all have a common grievance, and that the relief is in its nature beneficial to them all."
1 Citers


 
Anderson v Lambie [1954] UKHL 3; [1954] 1 WLR 303; [1954] 3 All ER 157 (Note); 1954 SLT (Notes) 22; 1954 SLT 73; 1954 SC (HL) 43
25 Jan 1954
HL
Lord Reid, Lord Keith of Avonholm
Scotland, Land, Litigation Practice, Contract
As the result of a mistake, a disposition of property conveyed the entirety of an estate which consisted mainly of a farm, but also included other property. The preceding missives of sale were capable of more than one meaning as to the extent of the subjects to be conveyed. The evidence established that the missives had themselves been preceded by an oral agreement for the sale of the farm alone. Held: The appeal succeeded and the decision of the First Division reversed. Such problems with this type of mistake in expression could not be resolved by construing the document as it stood, unlike a mistake in expression which was obvious on the face of the document. Neither was this a situation where an agreement was vitiated by error: "in the present case the error only arose after the parties had reached agreement". There must nevertheless be a remedy.
However, it was incompetent under Scots law for a defectively expressed document to be corrected by the court so as to give effect to the true agreement between the parties.
Lord Keith of Avonholm said that reduction was available in the event of a conveyance or contract "being expressed as regards essentials in different terms from what the parties really intended and had agreed between them".
As to the remedy of reduction, Lord Reid said: "But, when it is sought to reduce a deed, it is necessary to go behind the deed and discover the real facts. The fact that the parties agreed to the missives is important evidence but it is not the only competent evidence. The question is not what the missives mean: if that were the question, the ordinary rule would apply that the meaning of a document must be found from its terms. The question is whether the real facts are such that the disposition must be reduced, and the existence of the missives does not alter the nature of the inquiry."
1 Cites

[ Bailii ]

 
 Ladd v Marshall; CA 29-Nov-1954 - [1954] 1 WLR 1489; [1954] 3 All ER 745; [1954] EWCA Civ 1

 
 London Corporation v Cusack-Smith; HL 1955 - [1955] AC 337

 
 In re Majory, a debtor; CA 1955 - [1955] Ch 600
 
Martell v Consett Iron Co Ltd [1955] Ch 363
1955
ChD
Danckwerts J
Litigation Practice
In a case of maintenance (as opposed to champerty), a stay should not be ordered. The laws relating to maintenance and champerty must develop to accommodate to changing times.
1 Citers


 
Lake v Lake [1955] P 336
1955
CA
Sir Raymond Evershed MR, Hodson LJ
Litigation Practice, Family
Mrs Lake's answer to an allegation of adultery had been one of denial or, in the alternative, condonation. Her husband's petition was dismissed, the Commissioner finding that there had been adultery but that it had been condoned. She sought to appeal against the finding of adultery Held: Her appeal was refused. A party cannot appeal against a judgment when he has no complaint about the order in fact made. A party's statutory right to appeal is governed by section 27 which allows for an appeal from "the whole or any part of any judgment or order", which means the "formal judgment or order." It is the order that the court makes that disposes of the proceedings and provides the basis for an appeal, not the issuing of the reasons for it in the form of the court's judgmentit is the order that the court makes that disposes of the proceedings and provides the basis for an appeal, not the issuing of the reasons for it in the form of the court's judgment.
Hodson LJ said: "This is an attempt by a successful party to appeal against an order which she has obtained in her favour. In my judgment, this court cannot entertain such an appeal."
Judicature Act 1925 27
1 Citers



 
 Morelle Ltd v Wakeling; CA 1955 - [1955] 2 QB 379; [1955] EWCA Civ 1; [1955] 2 WLR 672; [1955] 1 All ER 708

 
 Benmax v Austin Motor Co Ltd; HL 1955 - [1955] AC 370; (1955) 72 RPC 39
 
J v J [1955] 2 All ER 85; [1955] P 215; [1955] 2 WLR 973
1955
FD
Sachs J
Family, Litigation Practice
Sachs J set out the disclosure required in ancillary relief cases: "In cases of this kind, where the duty of disclosure comes to lie upon the husband; where a husband has - and his wife has not - detailed knowledge of his complex affairs; where a husband is fully capable of explaining, and has the opportunity to explain, those affairs, and where he seeks to minimise the wife's claim, that husband can hardly complain if when he leaves gaps in the court's knowledge, the court does not draw inferences in his favour. On the contrary, when he leaves a gap in such a state that two alternative inferences may be drawn, the court will normally draw the less favourable inference - especially where it seems likely that his able legal advisers would have hastened to put forward affirmatively any facts, had they existed, establishing the more favourable alternative."
. . And " . . it is as well to state expressly something which underlies the procedure by which husbands are required in such proceedings to disclose their means to the court. Whether that disclosure is by affidavit of facts, by affidavits of documents or by evidence on oath (not least when that evidence is led by those representing the husband) the obligation of the husband is to be full, frank and clear in that disclosure"
1 Citers



 
 In re Harrison's Share Under a Settlement; CA 1955 - [1955] Ch 260
 
Attorney-General v Colchester Corporation [1955] 2 QB 207
1955

Lord Goddard CJ
Litigation Practice
Lord Goddard said: "No authority has been quoted to show that an injunction will be granted enjoining a person to carry on a business, nor can I think that one ever would be, certainly not where the business is a losing concern."
1 Citers


 
Atid Navigation Co Ltd v Towage and Shipping Co Ltd [1955] 1 WLR 336
1955

Wynn-Parry J
Litigation Practice
The judge refused to allow an additional party to be joined to an action to pursue a counterclaim. The issues between the present parties could 'perfectly well be decided' without the additional party.
1 Citers


 
In re Marjory [1955] Ch 600
1955

Lord Evershed
Litigation Practice
Lord Evershed said: " . . court proceedings may not be used or threatened for the purpose of obtaining for the person so using for threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused."
1 Citers


 
Re Hooker's Settlement [1955] Ch 55
1955


Litigation Practice

1 Citers



 
 Edwards (Inspector of Taxes) v Bairstow; HL 25-Jul-1955 - [1956] AC 14; [1955] 3 All ER 48; [1955] 36 Tax Cas 207; [1955] UKHL 3; [1955] UKHL TC_36_207; 36 TC 207
 
Regina v County of London Quarter Session Appeals Committee ex parte Rossi [1956] 1 QB 682; [1956] 1 All ER 670
1956
CA
Denning LJ, Morris LJ and Parker LJ
Family, Litigation Practice
A bastardy summons had been served on the defendant but he had not been properly served with a written notice indicating the date of an adjourned hearing. He sought an order for certiorari to quash the decision of the court. Held: Where there has been no service at all then the subsequent order is irregularly obtained and one to which the defendant is entitled to have set aside as of right. "He [that is the clerk of the peace] sent a letter by registered post to Mr Rossi telling him the date, time and the place of the adjourned hearing; but it was returned to him unopened and undelivered. In those circumstances was the Act complied with? Did the clerk of the peace in due course give "notice" to Mr Rossi? It is argued that it is sufficient to comply with section 3 (1) if he sends a registered letter to the respondent, even though it is not received by him, and known not to be received. I do not think this is correct. When construing this section, it is to be remembered that it is a fundamental principal of our law that no one is to be found guilty or be made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them. " Denning LJ distinguished between an order regularly made and one which was irregularly made. If it was regularly made then the proper course of complaint was by way of appeal. If it was irregularly made then the proper course was not only by appeal but also by way of prerogative writ. "But once it appeared that the letter had been returned undelivered, then it was quite plain that he had not been given notice at all of the date, time and place of the hearing. In short, service had not been effected; and the court should not have entered upon the hearing at all." and "I would just add this: if the order had been regularly obtained (as the Divisional Court thought), then I would agree that there would be no ground for certiorari and the only remedy of Mr Rossi would be by application to quarter sessions to set aside the order made in his absence and to rehear the appeal." and "... if the letter is returned undelivered and nevertheless, notwithstanding its return, a judgment or order by default should afterwards be obtained, it is irregular and will be set aside ex debito justitiae. The order of quarter sessions here was irregular because there was no proper service and it should be set aside."
Parker LJ said: "The section, it will be seen, is in two parts. The first part provides that the dispatch of a notice or other document in the manner laid down, shall be deemed to be service thereof. The second provides that, unless the contrary is proved, that service is effected on the day when in the ordinary course of post the document would be delivered. This second part, therefore, concerning delivery as it does, comes into play, and only comes into play, in a case where under the legislation to which the section is being applied the document has to be received by a certain time. if in such a case "the contrary is proved", i.e., that is the document was not received by that time or at all, then the position appears to be that, though under the first part of the section the document is deemed to have served, it has been proved that it was not served in time."
1 Citers



 
 Bryers v Canadian Pacific Streamships Ltd; CA 1956 - [1957] 1 QB 134; [1956] 3 All ER 560
 
Radio Corporation of America v Ranland Corporation [1956] 1 QB 618
1956

Devlin J
Litigation Practice
The 1856 Act cannot be used to allow a fishing expedition for evidence. The court distinguished between "a process by way of discovery and testimony for that purpose" and "testimony for the trial itself".
Foreign Tribunals Evidence Act 1856
1 Citers



 
 Burnell v British Transport Commission; CA 1956 - [1956] 1 QB 187

 
 Galloway v Galloway; HL 1956 - [1956] AC 299; [1955] 3 All ER 429
 
Sherrin v Brand [1956] 1 QB 403
1956
CA
Sir Raymond Evershed MR, Birkett LJ, Romer LJ
Housing, Litigation Practice
The landlord had obtained a possession order against his secure tenant. The order was suspended, but the landlord then failed to enforce the order after the date and when the tenant had failed to comply with the terms of the suspension. The tenant died. There was in the meantime a statutory succession and the court had to decide whether here remained a tenancy to succeed to. Held: The court interpreted the order to mean that that the tenant was to remain on as tenant subject to the added obligation that he had to pay off the arrears by instalments "and subject also to this, that if default was made, the plaintiff could then take the appropriate steps mentioned by getting a warrant to execute the order without further or separate proceedings." Birkett LJ emphasised the wide powers given to the judge. A possession order did not terminate the statutory tenancy so as to prevent a statutory succession.
Sir Raymond Evershed MR: "It is always within the jurisdiction of the court, in my judgment (assuming that the conditions for the exercise of the jurisdiction have arisen) to make an order for possession, but to postpone the effectiveness of the order by making the continued occupation of the tenant conditional, for example, on his paying arrears of rent and costs in such manner as is provided by the order - such a provision being within the language which I have read from section 4 (2) - or to postpone the date of possession for such period or periods as it thinks fit, and subject to such conditions, in regard to payment by the tenant of arrears of rent and otherwise, as the court thinks fit. That indeed is, as I think, plainly the effect of the order of December 2, 1953; and, if that is the effect of the order, it certainly does not necessarily involve the result (as I read section 15 (1)) that, during the period of the postponement of possession, the so-called statutory tenancy ceases altogether, and the tenant wholly ceases to have the protection of the Act."
Birkett LJ: "[T]he widest possible discretion is given to the county court judge, and one can understand why it is done. He is told: 'You can postpone possession if the facts warrant it; you can postpone the date for possession for such time as you think proper; and, moreover, you can lay down such conditions as you think proper.' Then at the end of the section come the all-important words: 'and, if such conditions are complied with, the court may, if it thinks fit, discharge or rescind any such order or judgment.'
What the Act of Parliament was clearly intending to do was to invest the county court judge with the widest possible powers, because of the infinite variety of circumstances in which people are placed in regard to their housing, and in which they are compelled to go to the county court either as landlords or as tenants. The statute says: 'You can adjourn it if you wish when the facts are such that, if you do adjourn it, that may be an end of the whole matter. If the facts indicate that it is the proper thing to do, you may make an order for possession. If it is a reasonable thing to do, make it. It is quite true that you may suspend the order' - and, as the county court judge pointed out, during that period of suspension, there may be any number of applications to the court for a suspension of the order; that, at any rate, is in a category by itself. Then the third matter is the wide discretion vested in the court for postponing the date of possession as it thinks fit for such period as it thinks fit and on such terms as it thinks fit; and if those conditions are fulfilled, the court may also, if it thinks fit, discharge the order altogether."
Romer LJ said: "the judgment for possession was not intended to have an immediate effect, and would never indeed take effect at all provided that the conditions as to payment were fulfilled. If this be the true meaning and construction of the order, it is clear that it cannot have resulted in determining Phelps's statutory tenancy on the date upon which it was made, for the object of the order was to preserve Phelps's position (albeit conditionally) and preservation is the antithesis of destruction. At Phelps's death there was a tenancy which was subsisting, and not defunct; and I can see no valid reason why the defendant should not be entitled to it by succession."
Rent Restriction Act 1923 4(2)
1 Citers



 
 Amon v Raphael Tuck and Sons Ltd; 1956 - [1956] 1 QB 357
 
Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436
1957

Viscount Simonds
Litigation Practice
Viscount Simonds said: "For words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy." However the guiding principles of interpretation and exposition of statutes are stated in so many ways that "support of high authority may be found for general and apparently irreconcilable propositions".
1 Citers


 
Behrens v Bartram Mill Circus 1957] 2 QB 1
1957
QBD
Devlin J
Litigation Practice, Constitutional
Devlin J said that the ratio decidendi consists of the reason or reasons for a decision which the judge who gives it wishes to have the full authority of precedent.
1 Citers



 
 Attorney-General v Prince Earnest Augustus of Hanover; HL 1957 - [1957] AC 436; [1957] 1 All ER 49
 
Vine v National Dock Labour Board [1957] AC 488; [1956] 1 QB 658; [1956] 3 All ER 939; [1957] 2 WLR 106
1957
HL
Viscount Kilmuir LC, Lord Keith of Avonholm
Litigation Practice
The plaintiff was employed under a statutory scheme for the employment of dock labourers. He appealed against a finding that the rules on dismissal contained within the scheme were not the only ones appertaining. Held: Referring to the ordinary master and servant case, Viscount Kilmuir LC said: "if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract." A declaration that a dismissal was null and void will not be granted in the case of an ordinary contract of employment.
Lord Keith of Avonholm said that the case did not involve "a straightforward relationship of master and servant". It involved the validity of certain administrative procedures.
1 Cites

1 Citers



 
 Behrens v Bertram Mills Circus Ltd; QBD 1957 - [1957] 2 QB 1; [1957] 1 All ER 583; [1957] 2 WLR 404

 
 Jones v National Coal Board; CA 17-Apr-1957 - [1957] 2 QB 55; [1957] EWCA Civ 3; [1957] 2 All ER 155; [1957] 2 WLR 760
 
Woods v Martins Bank Ltd [1958] 3 All ER 166; [1958] 1 WLR 1018; [1959] 1 QB 55
1958

Salmon J
Banking, Negligence, Litigation Practice
If a bank chooses to give advice to a customer, then the Bank’s obligation is to advise with ordinary skill and care. The liability is primarily on contract: “In my judgment, the limits of a banker’s business cannot be laid down as a matter of law. The nature of such a business must in each case be a matter of fact . .” and “I find that it was and is within the scope of the Defendant Bank’s business to advise on all financial matters and that as they did advise him they owed a duty to the Plaintiff to advise him with reasonable care and skill.”
Salmon J discussed the duty of the lawyers for a party to make full disclosure: "It cannot be too clearly understood that solicitors owe a duty to the court, as officers of the court to make sure, as far as possible, that no relevant documents have been omitted from their client's list".
Salmon J discussed the duties of legal advisers: "it cannot be too clearly understood that solicitors owe a duty to the court, as officers of the court, to go through the documents disclosed by their client to make sure, as far as possible, that no relevant documents have been omitted from their client's [list]."
1 Citers


 
Nana Ofori Atta (II) v Nana Abu Bonsra (II) [1958] AC 95
1958
PC
Lord Denning
Litigation Practice
(West Africa) Care must be taken in respect of the notion that merely standing by and waiting to see the outcome of a case in which the non-party has an interest, without more, involves an abuse of process. The parties now disputed title to land, but it was complained that the title had been determined in previous proceedings, but the plaintiff had stood by without asserting his own claim. The principles derived from the Wytcherley case are not restricted to probate proceeings. Lord Denning said: "English law recognizes that the conduct of a person may be such that he is estopped from litigating the issue all over again. This conduct sometimes consists of active participation in the previous proceedings, as, for instance, when a tenant is sued for trespassing on his neighbour's land and he defends it on the strength of the landlord's title and does so by the direction and authority of the landlord. If the tenant loses the action, the landlord would not be allowed to litigate the title all over again by bringing an action in his own name. On other occasions the conduct consists of taking an actual benefit from the judgment in the previous proceedings, such as happened in In re Lart, Wilkinson v. Blades [[1896] 2 Ch 788]. Those instances do not however cover this case, which is not one of active participation in the previous proceedings or actual benefit from them, but of standing by and watching them form out most giving evidence in support of one side or the other. In order to determine this question the West African Court of Appeal quoted from a principle. . . " in Wytcherley.
He continued "Mr. Phineas Quass argued before their Lordships that the principle stated by Lord Penzance was confined to wills and representative actions and has never been extended further. . .
[The principle] may have been found appropriate in England only in special conditions. But there is no reason why in West Africa it should not be applied to conditions which are found appropriate for it there, but which have no parallel in England. It seems to be the recognized thing in this part of West Africa for all persons with the same interest in a land dispute to range themselves on one side or the other. Sometimes they apply to be joined as parties. On other occasions they regard the named party as their champion and support him by giving evidence. If he wins, they reap the fruits of victory. If he fails, they fall with him and must take the consequences. It is now 25 years ago that the Chief Justice drew attention to this way of looking at litigation: see Yode Kwao v. Kwasi Coker [(1931) 1 WACA 162, 167], Appoh Ababio v. Doku Kanga [(1932) 1 WACA 253]. It has led the Court of Appeal in West Africa to look for a principle to meet the situation and they have found it in the principle stated by Lord Penzance: see Akwei v. Cofie [(1952) 14 WACA 143].
1 Cites

1 Citers



 
 Hanak v Green; CA 1958 - [1958] 2 QB 9; [1958] 2 WLR 755; [1958] 2 All ER 141

 
 GL Baker Ltd v Medway Building and Supplies Ltd; CA 11-Jan-1958 - [1958] 1 WLR 1216; [1958] 3 All ER 540
 
Crawford v Springfield Steel Co Ltd Unreported 18 July 1958
18 Jul 1958

Lord Cameron
Litigation Practice
The pursuer, a steelworker, had been diagnosed with pneumoconiosis. He had worked for a previous company, and had claimed damages from them Held: In an exceptional case such as this, a judgment may not conclusively decide the full measure of damage for which B is liable to A, a sum agreed to be paid under a compromise may or may not represent the full measure of B's liability to A.
1 Citers


 
Rands v Oldroyd [1959] 1 QB 209
1959


Litigation Practice, Administrative
The ejusdem generis rule is, at best, a very secondary guide to the meaning of a statute. The all-important matter is to consider the purpose of the statute. A statute preventing a civil servant contracting for his employers with a company in which he had an interest, should be interpreted strictly.
1 Citers


 
Attorney-General v Vernazza, In Re Vernazza [1959] 1 WLR 622; [1960] 1 All ER 183
1959
CA
Lord Parker CJ
Litigation Practice
The respondent to an application to prevent him issuing proceedings without the court's consent, had brought actions claiming in one form or another that a consent judgment ought to be set aside and that he was still owed the sum claimed in the compromised action. Lord Parker CJ said: "In considering whether the proceedings are vexatious one is entitled to, and must look at, the whole history of the matter, and it is not determined by whether the pleading discloses a cause of action. Indeed, that is the principle applied under the rules of court when application is made to strike out a pleading. Though the pleading may be in order, the court in its inherent jurisdiction, is entitled to look at affidavits as to the history of the matter, and if, in the light of that history the action is vexatious, the pleading can be struck out and the action dismissed."
1 Cites

1 Citers


 
Attorney-General v Vernazza [1959] 2 All ER 200
1959
QBD
Lord Denning
Litigation Practice
During the pendency of an appeal against an order restraining a vexatious litigant from commencing proceedings, an Act was passed adding to the court's power to restrain vexatious litigants from commencing proceedings a power to restrain them from pursuing existing proceedings. The Act was held to be procedural on the basis that it did not deprive the litigant of a right to bring proper proceedings and even if it had been regarded as substantive. In deciding whether any given proceedings are vexatious the court is entitled to look at the whole history of the matter and is not confined to such questions as whether an individual pleading discloses a cause of action. The effect of the new Act was retrospective since to hold otherwise would only lead to renewed proceedings.
1 Cites

1 Citers


 
Islip Pedigree Breeding Centre and Others v Abercromby 1959 SLT 161
1959
HL
Lord Reid
Scotland, Litigation Practice
The House of Lords should only review concurrent findings of fact in both Outer and Inner House of the Court of Session which depended upon an assessment of credibility by the trial judge if it can be clearly demonstrated that his findings were erroneous.
1 Citers


 
Bruen v Bruce (Practice Note) [1959] 2 All ER 375 CA; [1959] 1 WLR 684
1959
CA

Litigation Practice

1 Citers


 
Ex parte Mwenya [1960] 1 QB 241; [1959] 3 All ER 525
1959
CA
Lord Evershed MR, Lord Parker
Litigation Practice
A writ of habeas corpus might issue to Northern Rhodesia.
Such a writ of should only be issued where it can be regarded as "proper and efficient" to do so. However, it remains "the most efficient protection yet developed for the liberty of the subject". The reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of "the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown."
Lord Parker said: "Reliance was further placed by the applicant on Barnardo v Ford and Rex v Secretary of State for Horne Affairs, Ex p O'Brien. Both those cases are authority for the proposition that the writ will issue not only to the actual gaoler but to a person who has power or control over the body. Further, in O'Brien's case the writ was issued to the Secretary of State for Home Affairs, who had in fact handed the physical custody of the body over to the Government of the Irish Free State. It is clear, however, from the facts of that case, that the Secretary of State had not only been responsible for the original detention but that there were strong grounds for thinking that in handing over the body to the Government of the Irish Free State he had not lost all control over it. In those circumstances the court decided to issue the writ in order that the full facts could be investigated and argument heard on the return.
The position here is quite different. The restriction orders under which the applicant is detained were not made by the Secretary of State. His approval or consent was not required and there is no evidence that he took any part in the detention. No doubt the writ will issue not only to a person who has the actual custody but also to a person who has the constructive custody in the sense of having power and control over the body. Here, however, we can find no custody by the Secretary of State in any form." (obiter) said: "Finally, we should mention another point that was raised, namely, that even if the Secretary of State could be regarded as the custodian of the body the writ would not issue to a custodian in this country where the original and present detention was, as in the present case, in a foreign territory . ."
1 Cites

1 Citers


 
Akerhielm v De Mare [1959] AC 789; [1959] 3 All ER 485
1959
PC
Lord Jenkins
Litigation Practice, Torts - Other, Company
A company prospectus contained the following: "About a third of the capital has already been subscribed in Denmark." Though the directors believed this to be true, it was not true at the time the prospectus was issued. Held: The statement was not fraudulent having been made with an honest belief in its truth. When a party has been acquitted of fraud the decision in his favour should not be displaced except on the clearest grounds.
Lord Jenkins said: "their Lordships are satisfied that this is not one of those exceptional cases in which an appellate court is justified in reversing the decision of a judge at first instance when the decision under review is founded upon the judge's opinion of the credibility of a witness formed after seeing and hearing him give his evidence. Their Lordships can hardly imagine a case in which the credibility of a witness could be more vital than a case like the present where the claim is based on deceit, and the witness in question is one of the defendants charged with deceit. Their Lordships would add that they accept, and would apply in the present case, the principle that where a defendant has been acquitted of fraud in a court of first instance the decision in his favour should not be displaced on appeal except on the clearest grounds." and "The question is not whether the defendant in any given case honestly believed the representation to be true in the sense assigned to it by the court on an objective consideration of its truth or falsity, but whether he honestly believed the representation to be true in the sense in which he understood it albeit erroneously when it was made."
1 Cites

1 Citers


 
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