Ascherberg, Hopwood & Crew Ltd v Casa Musicale Sonzogno di Pietro Ostali

JurisdictionEngland & Wales
JudgeLORD JUSTICE RUSSELL,LORD JUSTICE KARMINSKI
Judgment Date23 April 1971
Judgment citation (vLex)[1971] EWCA Civ J0423-1
Date23 April 1971
CourtCourt of Appeal (Civil Division)

[1971] EWCA Civ J0423-1

In The Supreme Court of Judicature

The Court of Appeal

(Civil Division)

(From: Mr. Justice Ungoed-Thomas)

Before:

Lord Justice Russell

Lord Justice Karminski and

Sir Gordon Willmer

Ascherberg, Hopwood & Crew Limited
and
Casa Musicals Sonzogno, Di Piero Ostali Societa. In Nome Collettivo Con Sede in Milano, Domenico Mascagni (Male), Emilia Mascagni in Farinelli (Married Woman) and Dorothy Nellie Caulder (Married Woman) in her Capacities as Administratrix of the Estates of Pietro Mascagni deceased and of Lina Mascagni in Deotto deceased (by Orders to carry on dated 20th July, 1956, and 20th February, 1967)

Mr. PETER OLIVER, Q.C. and Mr. E.P. SKONE JAMES (instructed by Messrs. Herbert Smith & Co.) appeared on behalf of the Appellants (Second and Fourth Defendants).

Mr. PATRICK NEILL, Q.C. and Mr. J.N.B. PENNY, Q.C. (instructed by Messrs. Joynson-Hicks & Co.) appeared on behalf of the Respondent-Plaintiffs.

Mr. JULIAN JEFFS (instructed by Messrs. Bartlett & Gluckstein) appeared on behalf of the Respondents the First Defendants.

LORD JUSTICE RUSSELL
1

The judgment appealed from in this case is reported in 1971 1 Weekly Law Reports at page 173, and I do not think it necessary to repeat what is there to be found. The appellants advance a number of contentions. The first is this, that, on the pleadings as they stood, and indeed as they still stand - that is to say their Defence - the appellants are at liberty to lead expert evidence of Italian law, first as to the special meaning of terms of art used in the Italian-language agreements and secondly as to the general state of Italian copyright law at various dates. They accept that they need to amend their Defence to raise any rule of construction peculiar to Italian law: but they say that the adjournment would have been necessary anyway, on the basis of this contention of theirs, because of the fortuitous absence when the case came on for trial of their Italian law expert - without their fault; and they say that the fact that they additionally desire to amend in respect of that other particular, namely raising particular rules of construction under Italian law, did not really add to the need for an adjournment. Accordingly, they argue that they should not be made to shoulder in any event the costs of the other parties thrown away by the adjournment.

2

For my part, I am not able to agree that amendment of their Defence is not necessary to enable the appellants to lead evidence under the two heads that I have mentioned. We have been referred to a number of authorities but I think it is sufficient in this connection to refer to the requirements as to pleadings in Order 18 Rule 8 sub-rule 1 (b), which requires that the defence should plead specifically any matter which if not specifically pleaded might take the opposite party by surprise. Supposing that nothing had been said, and suppose that the appellants' expert had beenavailable at the trial: the plaintiffs would have opened and closed their case on the basis simply of the agreed translations of the Italian agreements. The appellants would then have put their Italian legal expert into the box to state (for example) that in Italian law certain words used in the Italian agreements were terms of art and by no means meant what the English mind would take the English translation to mean. What could be a greater surprise to the plaintiffs? Indeed the plaintiffs cannot really prepare any case on Italian law now, even with the aid of the amendments which were suggested to the judge by the appellants, and even with those suggestions fortified by a few further suggested details extracted - not with great case - from the appellants' counsel in the course of debate.

3

I accordingly, on this short ground, reject this first contention of the appellants and the particular argument as to costs that depended upon it.

4

Secondly, the appellants contended that the amendment that was permitted and indeed called for by the judge's order by way of particularising their contentions as to Italian law, was too detailed and too stringent. It was argued initially that, since their contentions on Italian law were by the order required to be set out in affidavit form, this amendment of the pleadings would involve unnecessary duplication by setting them out also in the Defence. I think, with respect, that there is nothing in that point, because once they have their detailed affidavit of their expert's views on the various points of Italian law that they consider to be relevant, the Defence can by a short amendment incorporate that document by reference.

5

Further, counsel for the appellants was concerned lest, if he was required to particularise in such detail, his expert when under cross-examination on his affidavit would not be able orallowed to rebut any suggestion of error by reference to some law or authority which was not already referred to in the particulars by reference. For my part I think that this anxiety is wholly ill-founded; and this view was expressly confirmed by counsel for the plaintiffs.

6

Accordingly I see no ground for differing from the judge as to the particularity required.

7

Thirdly, the appellants next contended that the judge should not have ordered them to pay the costs thrown away by the adjournment of the trial after three days of hearing. They say that, while it would be right that they should pay the costs of and occasioned by their amendment, and perhaps any costs which-had been incurred by the other parties with an eye on trial taking place at or near the fixed date, they should not have to pay in any event the costs of the three-day hearing. They say to us that the proper order as to those costs should have been either that all costs should have been costs in the cause, or reserved, or that no order should have been made. It is a curious fact that none of the several notes taken by counsel below suggests that counsel for the appellants put forward any of those suggested alternatives; and he himself cannot recall whether he did. Those notes in fact suggest that he only argued against the suggestion that there should be money brought into court as security for those costs which were in the event ordered to be presently taxed but not presently paid, and as to the quantum of such security.

8

The present contention is based on two suggestions, as I understand it. The first of these is that the plaintiffs were themselves in error in that when they were told, some ten days before, that the appellants would or might wish to amend their Defence to plead Italian law, the plaintiffs ought then to have vacated the date in November, 1970, which had been fixed over ayear before for the trial, accepting - as it is said they should have done - as inevitable that amendment would be permitted.

9

For myself I do not find it possible to...

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    • United Kingdom
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    • 20 d3 Outubro d3 2021
    ...relied on, is a matter which must be pleaded so that the defendant knows the case it has to meet: see eg Ascherberg, Hopwood & Crew Ltd v Casa Musicale Sonzogno Di Pietro Ostali SNC [1971] 1 WLR 1128. However, although the amended claim form and particulars of claim describe the relief cla......
  • Wolfe v Wolfe
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    • 28 d5 Julho d5 2000
    ...In the case of Ascherberg, Hopwood and Crew Limited -v- Casa Musicale Sonzogno di Piero Ostali, Societa in Nome Collettivo and Others (1971) 3 All ER 38, the trial was adjourned after three days of hearings and the Applicants were permitted, (notwithstanding the opposition of the Plaintiff ......
  • Global Multimedia International Ltd v ARA Media Services and Another
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    • 21 d5 Julho d5 2006
    ...pleading it was necessary to plead foreign law: see Ascherberg, Hopwood and Crew Ltd v Casa Musicale Sonzogno di Pietro Ostali SNCWLR ((1971) 1 WLR 1128). That requirement arose from the terms of Order 18, rulr 8(1)(b) of the Rules of the Supreme Court because in the absence of such pleadin......
  • Law Ka Leung, Victor And Others v Xin Yingmei And Others
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    • High Court (Hong Kong)
    • 11 d1 Julho d1 2016
    ...necessary to plead foreign law (see Ascherberg, Hopwood and Crew v Casa Musicale Sonzogno Di Piero Ostali, Societa in Nome Collettivo [1971] 3 All ER 38, [1971] 1 WLR 1128). That requirement arose from the terms of RSC Ord 18, r 8(1)(b) because in the absence of such pleading foreign law wa......
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2 books & journal articles
  • FOREIGN LAW IN DOMESTIC COURTS
    • Singapore
    • Singapore Academy of Law Journal No. 2017, December 2017
    • 1 d5 Dezembro d5 2017
    ...Sonzogno di Pietro Ostali SNC[1971] 1 WLR 173 at 180–181. 20Ascherberg, Hopwood & Crew Ltd v Casa Musicale Sonzogno di Pietro Ostali SNC[1971] 1 WLR 1128. 21[1999] 2 SLR(R) 419 at [14]. 22[2007] EWHC 1713 (Comm). 23 At [98]–[99]. 24 Citing Richard Fentiman, Foreign Law in English Courts: Pl......
  • THE ROLE OF LAW IN PLEADINGS
    • Singapore
    • Singapore Academy of Law Journal No. 1998, December 1998
    • 1 d2 Dezembro d2 1998
    ...Summer v William Henderson[1963] 1 WLR 823; Royster v Cavey[1947] KB 204. 58 Ascherberg, Hopwood and Crew Ltd v Casa Musicale Sonzogno [1971] 1 WLR 1128; Woon Ngee Yew v Ng Yoon Thai. [1941] MLJ 37; B v Comptroller of Inland Revenue[1974] 2 MLJ 110. Also see the observations of Lai Kew Chai......

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