Bearmans Ltd v Metropolitan Police District Receiver
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE DEVLIN |
| Judgment Date | 09 December 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J1209-3 |
| Date | 09 December 1960 |
| Court | Court of Appeal |
[1960] EWCA Civ J1209-3
Lord Justice Sellers
Lord Justice Devlin and
Mr. Justice Slade
In The Supreme Court of Judicature
Court of Appeal
Mr. STEPHEN CHAPMAN, Q.C. and Mr. DAVID HIRST (instructed by Messrs. Crawley Arnold Ellis & Ellis) appeared on behalf of the Appellant (Defendant).
Mr. F.H. LAWTON. Q.C. and Mr. HUGH GRIFFITHS (instructed by Messrs. Berrymans) appeared on behalf of the Respondents (Plaintiffs).
: This case has earned distinction by the erudite, clear, careful and wellnigh complete judgment of Master Jacob. It is no doubt an admirable vade mecum, with the authorities compendiously dealt with, for anyone who is interested in the various issues which have arisen in this case from the very commencement of it as a matter referred for the hearing of a preliminary point right down to its final conclusion. But whether this case was worthy of the learning and labour bestowed upon it is another matter. No doubt it was a tribute to the arguments of learned Counsel, which seem to have covered much depth before the learned Master.
Before this court learned Counsel for the appellant invited us to bring order amongst the various authorities which have prevailed since the passing of the Evidence Act of 1938 but for myself I do not find that task at all attractive or one which it is incumbent upon or desirable for this court to undertake. The matter arises on plain words from an Act and I think that the cases, whilst they serve as a guide, do not call for a general review so as to interpret in different words what is said in the precise words of the section. Therefore I am satisfied to decide this case on one only of the three grounds which were argued before the Master.
The matter came before the court on the pleadings in an action between two plaintiffs, Bearmans Limited and an insurance company, the London and Lancashire Insurance Company, Limited, and the Receiver for the Metropolitan Police District. The claim is a novel one in such experience as I have had on the Bench and at the Bar but it may well be that it has ample justification. The first plaintiffs were the owners of a department store in Leytonstone; the second plaintiffs were insurers who paid the first plaintiffs under an insurance policy; and the defendant is the Receiver for the Metropolitan District. The claim arises out of an incident which is set out in the second paragraph of the Statement of Claim, which embodies material from two documents which have been in controversy in this case. It is alleged that in the afternoon, about 2 p.m., on Sunday the 12th January, 1958, four persons together wrongfully entered the department store, overpowered, bound and gagged one Milne, the watchman employed by the first plaintiffs, and by threats put him in fear of bodily harm. They then broke open the strong-room in the store by means of explosives and stole bank notes, cheques and coins. In other parts of the premises they stole watches and other articles. By reason of those facts the first plaintiffs allege that they suffered a total loss of £8,000 odd. The second plaintiffs had paid some £5,000 for that theft; and for their respective losses these plaintiffs sought to recover damages under the Riot (Damages) Act, 1886. In order to fulfil the requirements of that Act there had to be something in the nature of a riot by three or more persons. The defence is a denial of damage. The defendants admit that the plaintiffs made a claim, and they rely on certain portions of the Riot (Damages) Act, 1886, in order at any rate to mitigate, if not totally to destroy, any liability which might otherwise arise.
Now the only evidence, substantially, which the plaintiffs have to support their claim is the evidence of the watchman, James Milne, who was attacked in the way that has been described. He made two statements, one to the police in the evening some three or four hours after this event on Sunday, 12th January, and another one on the 22nd January, to a representative of a firm of loss adjusters who were investigating the facts and who had in mind that there was a possibility of a claim over by the insurers and by the first plaintiffs against the Receiver for the Metropolitan Police District under the Act to which I have referred.
A question arose as to whether those two statements made by James Milne were admissible in evidence under the Evidence Act, 1938, because it was conceded by the plaintiffs that unless they were evidence under that Act they could not be brought in evidence at all. Some time after these proceedings were launched, and by the time they were getting ready for trial, unfortunately James Milne died. He could not, therefore, be called as a witness, and everything turned on whether the account which he gave in those two statements could be given in evidence and available for the judge to consider whether he could accept what was there stated or not.
In the judgment the Master sets out fully the conclusions which he derived from the evidence which had been given before him, and on that evidence he came to the conclusion that these two statements could clearly be admitted in evidence. It is from that conclusion that this appeal has been brought. The submission has been made that, on the Evidence Act itself and in the light of the cases which have been decided since, the learned Master was wrong in reaching that conclusion. On this issue I would be prepared to say that the full and clear judgment of the Master is quite sufficient to satisfy me that his findings and his reasons conclude this appeal against the appellant but it may be desirable that I should add a little to what was said there, in deference to the argument that has been addressed to us.
Section 1 of the Evidence Act provides: "In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied"; and the first of those is fulfilled here -"if the maker of the statement….(a) had personal knowledge of the matters dealt with by the statement…." I need not read the proviso.
I turn to sub-section 2. "In any civil proceedings, the court may at any stage of the proceedings….order that such a statement….shall be admissible as evidence….(a) notwithstanding that the maker of the statement is available but is not called as a witness; (b) notwithstanding that the original document is not produced…."
Sub-section 4 I turn to next: "For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognised by him in writing as one for the accuracy of which he is responsible".
Sub-section 5 provides: "For the purpose of deciding whether or not a statement is admissible as evidence by virtue of the foregoing provisions, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner, and where the proceedings are with a jury, the court may in its discretion reject the statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted".
The requirements of those various provisions have admittedly been met. But reliance has been placed on sub-section 3 of section 1, which is as follows: "Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish".
There is only one other quotation from the Act that I need make, I think, because it arises on the argument. Section 2 sub-section 1: "In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts".
Sub-section 1 of section 2 is only relevant because some of the considerations which arise there have to some extent been invoked in the argument under sub-section 3 of section 1. They are relevent, after a document has been admitted, in considering what is its value and whether any value at all can be placed on it when it is called in question as evidence in the trial.
Before this court three questions were raised. It was contended on behalf of the plaintiffs, on this preliminary question which had been ordered to be tried before Master Jacob, that James Milne (that is the watchman) was not "a person interested" within the meaning of this sub-section. Secondly, that "proceedings" in the sub-section must in its context be limited to "civil" proceedings and that no such proceedings were "anticipated" at the relevant time. Thirdly, that "anticipated" in the sub-section must, in its context, be limited toanticipation only by the maker of the...
To continue reading
Request your trial
- Allied Bank (M) Bhd v Yau Jiok Hua
- Alias bin Jubri v Edaran Otomobil Nasional Bhd
-
Pennine Raceway Ltd v Kirklees Metropolitan Borough Council
...Marine Insurance Act 1906, section 5 and the Law of Property Act 1925, section 84. 14 As Lord Justice Devlin said in Bearmans Ltd. v. Metropolitan Police District Receiver (1961) 1 Weekly Law Reports, 634, at page 655: "The word 'interested' is not a word which has any well defined meaning,......
-
Bedfordshire Police Authority v Constable
...these plaintiffs sought to recover damages under the Riot (Damages) Act, 1886": Bearmans Ltd v Metropolitan Police District ReceiverUNK[1961] 1 All ER 384 per Sellers LJ at 386. 60. The history of the 2 stage process, submitted Mr Edelman, went back to the 1827 Act. Where a claim was made f......
-
Evidence 1
...where Uwais, J.S.C. (as he then was) relied on the English case of Bearmans Ltd. and Another v. Metropolitan Police District Receiver (1961) 1 W.L.R. 634 at 655 where Devlin, L.J. said: - “The word ‘interested’ is not a word which has any well defined meaning and anybody who was asked what ......
-
Representative Procedures and the Future of Multi‐Party Actions
...The Irish Rowan n 24 above, 227; EMI Records Ltd vRiley [1981] 1 WLR 923, 926.31 Bearmans Ltd vMetropolitan Police District Receiver [1961] 1 All ER 384, 391. See R. Cross andJ.W. Harris, Precedent in English Law (Oxford: Clarendon, 4th ed, 1991) 180.32 CBS/Sony Hong Kong Ltd vTelevision Br......
-
Preliminary Sections
...N.M.L.R. 287. ................................................................ Bearmans Ltd. v. Metropolitan Police District Receiver (1961) 1 W.L.R. 634. Bello v. A.G. Oyo State (1986) 5 NWLR (Pt.45) .................................. 415 591 CASES REFERRED TO IN [1992] 22 N.S.C.C. (pt.1) ......