British Road Services Ltd v Arthur v Crutchley & Company Ltd (Practice Note)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD PEARSON,LORD JUSTICE SACHS |
| Judgment Date | 15 December 1967 |
| Neutral Citation | [1967] EWCA Civ J1215-2 |
| Judgment citation (vLex) | [1967] EWCA Civ J0503-1 |
| Date | 15 December 1967 |
| Court | Court of Appeal (Civil Division) |
[1967] EWCA Civ J0503-1
The Master of the Rolls
(Lord Denning)
Lord Justice Davies and
Lord Justice Russell
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From: Mr. Justice Cairns
Mr S. Mason (instructed by Messrs Herbert Smith & Co.) appeared as Counsel for the Applicants (Defendants).
Mr G. Wiiliams (instructed by Messrs Herbert J. Davis, Berthen & Munro) appeared as Counsel for the Respondents (Plaintiffs).
Mr P. Ripman (instructed by Messrs Peace & Darlington, Liverpool) appeared as Counsel for the Third Party.
We think we should make clear the proper practice on appeals in actions where there are third parties. If the plaintiff has lost in the Court below and appeals to this Court seeking to make the defendant liable: and then the defendant (as respondent) serves a respondent's notice in which he seeks (if he is held liable to the plaintiff) to recover indemnity or contribution from the third party: then in such case the respondent is entitled, without leave, to serve the notice on the third party. The third party is a person who is "directly affected by the contentions of the respondent" within Order 59, rule 6(4) and should be served with the respondent's notice. Furthermore, the respondent can and should annex to the notice when he serves the third party the notice of appeal. That is necessary in order that the third party should know what the appeal is about.
The case of Re Salman is no authority to the contrary. It only applies to Older 59, rule 3(5) (which deals with a notice of appeal by an appellant). It has no application to a respondent's notice under Order 59, rule 6(4). Nowadays If a respondent desires to claim over against a third party, he can serve a respondent's notice without leave.
In this case, therefore, there is no need for the defendants to apply for leave to serve the third parties. The defendants are entitled without leave to serve the third parties with the respondent's notice (together with a copy of the notice of appeal, which they have themselves received). They are in time and should do so today.
So far as the costs are concerned, as it turns out that this is an unnecessary application, I am afraid the applicants must pay the costs of the other parties.
[1967] EWCA Civ J1215-2
Lord Pearson,
Lord Justice Danckwerts And
Lord Justice Sachs.
In The Supreme Court of Judicature
Court of Appeal
On Appeal From Judgment of Mr. Justice Cairns.
Mr. R. R. Forrest, Q. C., and Mr. R. R. Leech (instructed by Messrs. Herbert J, Davis, Berthen & Munro, and Liverpool) appeared on behalf of the Plaintiffs, Appellants.
Mr. David McNeill, Q.C., and Mr. F.D. Paterson (instructed by Messrs. Herbert Smith & Co.) appeared on behalf of the Defendants, Respondents,
Mr A. Rankin (instructed by Messrs. Peace & Darlington, Liverpool) appeared on behalf of the Third Party, Respondent.
This case has arisen from the theft of a lorry load of whiskey, worth £9,126, from a warehouse of the defendants, A. V. Crutchley & Co, Ltd., in the Liverpool dock area. The theft occurred in the early hours of the 30th July, 1963. The action was brought by the plaintiffs, British Road Services Ltd., as bailors, against the defendants as bailees, for the loss of the goods. The defendants brought in Factory Guards Ltd. as third parties, claiming that if the defendants were held liable to the plaintiffs, they should recover an indemnity or contribution from the third parties by reason of the third parties' negligent performance of their contract with the defendants to provide a mobile patrol service for the protection of the warehouse and its contents.
The main question in this appeal is whether the learned Judge was right in deciding that the defendants, on whom the burden of proof on this issue rested ( Coldman v. Hill (1919) 1 K.B. 443, 458) have proved that the loss of the goods was not caused by any negligence or breach of duty on their part or for which they were responsible. He found that there was some negligence by the defendants themselves in unduly exposing the valuable goods in their warehouse to the view of passers-by, and he hold that they would be also responsible to the plaintiffs for the inadequacy of the protection of the goods as a result of the third parties negligent performance of their contract with the defendants. He also found that the loss of the goods was not caused by that negligence of the defendants or by that negligence of the third parties. In my opinion, however, a broader approach is appropriate. It is necessary to consider whether, on the evidence as to the nature and volume of the defendants' business at this warehouse and the way in which it was conducted, there was not an inadequate system of protection and, if so, whether this was not a likely cause of the theft and consequent loss of the goods. I think that is really the main point in the case.
There is a comparatively minor issue as to whether the amount of the liability is under the contract between the plaintiffs and the defendants subject to a limitation of £500 per ton. The issues arising between the defendants and the third parties depend on the position as between the plaintiffs and the defendants and cannot conveniently be summarised in advance.
The plaintiffs have a Scottish district and its base is in Edinburgh. An important part of the business, though of course only a part, is the cartage of whisky from distilleries to bonded warehouses in the United Kingdom or to ships for export. If the load of whisky or other good is for delivery to a ship in Liverpool, it is sent by lorry on what is called the plaintiffs' "trunk service" to their Liverpool depot and then it is taken over by the plaintiffs' "shunt service". Sometimes the shunt service delivers the goods in the same lorry to the ship or to a locker:: which apparently resembles a cage and is kept on or in the vicinity of the wharf for customs or excise purposes. But if, through congestion of traffic at the docks or lack of space in a locker or a need to wait for loading facilities at the ship or for any other reason, it Day not be possible to effect delivery to the ship or locker on the day or their arrival in Liverpool, the goods way be delivered by the plaintiffs' shunt service to the defendants" transshipment depot at their warehouse in Cotton Street. The defendants have special arrangements for keeping themselves informed as to the conditions on the docks and they effect delivery of the goods to the ship or locker on the same day, if possible, but if that is not possible, they have to. keep the goods overnight in their warehouse for delivery on the next day.
Mr. Pugh, the detective officer who had been in charge of the theft case, gave evidence for the defendants. He said that the main dock road at Liverpool is about 7 miles long, and warehouse premises and similar businesses extend for practically the fulllength of it and back from it into the city for about 500 yards. He said "It is a vast stretch of very vulnerable property - warehouses containing a vast amount of valuable property. In this one little district alone there is millions of pounds worth." He also said that within half a mile of the defendants' Cotton Street warehouse there are seven or eight bonded warehouses, and there are dozens and dozens of other warehouses in the immediate vicinity, and there is a good deal of criminal activity in the district. There was ample evidence from. Pugh and other witnesses of whisky being a highly vulnerable" commodity; that is to say, attractive to thieves because it is valuable and easily disposed of.
The defendants Cotton Street warehouse, used for their transshipment business, was built in 1961. It forms part of premises occupied by the defendants and including, in addition to the warehouses, offices, a Joiner's shop, a paint store and a yard. Some packing of goods for export is carried on. The premises have a frontage on the main dock road, but the warehouse is a short distance back from: the main dock road and extends from Cotton Street at one end to Carlton Street at the other end. The warehouse is strongly built and has large, strong, double roller doors at each end for the entry and departure of vehicles. The doors when shut and fastened for the night have bolts going into the ground and padlocked and a crossbar is also padlocked. There are no windows of any ordinary kind, but in the roof there is a skylight made of reinforced glass, that is to say, glass incorporating wire mesh. The height from the floor to the eaves is about 24 feet and the further distance to the ridge of the roof is according to the plan about 10 feet, though a witness said it was about 16 feet. There is an overhead traveling crane with its gantry. The defendants considered this warehouse to be a "little fortress" and virtually impregnable. Its weak point, however, was the skylight, which could be reached by an enterprising climber, though somewhat perilously, over asbestos roofing. On either side of the warehouse there were adjoining premises, and a thief could climb up them and make his way over the intervening roofs to the skylight.
It appears from the plan that the width of the warehouse is about 78 feet, and its length is about 130 feet on one side and about 145 feet on the other side. Along one side there is a plat form. On the other side there is a space in which there may be trailers, loaded or waiting to be loaded, and motor units (the mechanical horses) hitched on or waiting to be hitched on to the trailers....
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