Adam & Harvey Ltd v International Maritime Supplies Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WINN,LORD JUSTICE HARMAN |
| Judgment Date | 11 January 1967 |
| Neutral Citation | [1966] EWCA Civ J0315-3 |
| Judgment citation (vLex) | [1967] EWCA Civ J0111-2 |
| Court | Court of Appeal |
| Date | 11 January 1967 |
[1966] EWCA Civ J0315-3
Lord Justice Harman
Lord Justice Diplock and
Lord Justice Winn
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Browne
MR T.M. EASBHAM, Q.C. and MR LLOYD ELEY (Instructed by Messrs Paisner & Co,) appeared as Counsel for the Appellants.
MR A. LINCOLN (instructed by Messrs Payne, Hicks Beach & Co.) appeared as Counsel for the Respondents.
This is a case in which both the Master and the leaded Judge have given leave to defend only upon the footing of paying the whole of the £5,000 claimed into Court. Mr Eesthan says that on well known principles that is not the right decision where there is a bona fide counterclaim presented. Now I cannot say that I am at all clear about the rights and wrongs of this matter and I do not propose to express any view about them. It is clear enough that there is a penal clause at the and of this very verbose and obscure agreement for the payment of £5,000 on this claim. There is a paragraph in the affidavit in answer which alleges, wildly enough, that a fundamental breach has been committed because it is said that in certain respects the plaintiffs have net performed their obligations under the agreement. That was abandoned quite candidly by Mr Eastham Who said he could not pretend in a lawyer's view that did amount to a fundamental breach. Therefore the very big animadversions in paragraph 6 of that affidavit do not to my mind come to anything. When you go on to paragraph 7, there are one or two items which are said to amount to a counterclaim which mere or leas equals the £5,000 claimed. Whether those items are justified I am far from saying but at this point I do not think you can say that they are net real and if successful would not amount to somewhere about the amount claimed.
Under those circumstances it does not seem to me that the learned Judge was justified in saying leave to defend this action ought to be conditional upon paying the whole amount into Court, and I have been wondering whether some lees sum paid in would satisfy the justice of the case. But on the Whole I think it is all or nothing and I come down on the side of giving leave to defend and giving leave unconditionally. I would for my own part allow this appeal on that footing.LORD JUSTICE DIPLOCK: I agree. It is with reluctance that this Court interferes with an exercise by a learned Judge in chambers of discretion upon a summons under Order 14. but I think, having listened to the argument before us, the learned Judge must have teen persuaded that the counterclaim did not relate to the subject matter of the agreement, in which case his order might well have been justified. I think, however, that if one looks at the evidence it is sufficiently plain that the whole of the counterclaim does relate to the same subject matter as he agreement, and since one cannot say that the counterclaim is bogus or a sham, whatever its ultimate merits may turn out to be, I think the defendants, the appellants here, were entitled to unconditional leave to defend.
I too would allow the appeal.
I agree. I think it is important that this Court should not depart from the principles stated in Gordon, v. Cradock. 1963, 2 All England Reports, p. 121, where the question is whether or not the grant of conditional leave to defend was a proper exercise of discretion by the learned Judge in chambers. I do not think that this Court is in this case departing from those principles, since I too think the learned Judge must have attached undue weight to same particular fact. He did not disclose what his reasons were. They may I think have included the view that it was the subsidiary company and...
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R v Cripps, ex parte Muldoon
...of the court, if it is clear that the court inadvertently failed to express the decision which it intended ( Adam & Harvey Ltd. v. International Maritime Supplies Co. Ltd. (1967) 1 All England 533). However, it cannot be overemphasised that the "slip rule" power can never entitle the trial ......
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