Clack v Arthur's Engineering Ltd

JurisdictionEngland & Wales
Judgment Date11 May 1959
Judgment citation (vLex)[1959] EWCA Civ J0511-1
CourtCourt of Appeal
Date11 May 1959

[1959] EWCA Civ J0511-1

In The Supreme Court of Judicature

Court of Appeal


Lord Justice Hodson

Lord Justice Romer and

Lord Justice Willmer.

Christopher Sidney Clack
Arthur'S Engineering Limited

Mr HAROUS ANWYL-DAVIES (Instructed by Messrs Sharpo, Pritchard & Go., Agents for Messrs Horne, Eagell & Freeman, Egham, Surrey) appeared on behalf of the Appellants (Defendants).

Mr JOHN DEBY (instructed by Messrs W.H. Thompson) appearred on behalf of the Respondent (Plaintiff).


The Judgment of the Court will be read by Lord Justice Willmer.


: In this case the defendants appeal from a Judgment of His Honour Judge Roid, given at Klngetee-upon-Thames County court on the 29th October, 1958, whereby be non-suited the plaintiff and awarded costs to the defendants. It is contended that Judgment ought to have been entered for the defendants with coasts.


The plaintiff claimed damages from the defendants for wrongfully terminating Ms contract of employment as works manager. His case was that, though paid weekly, he was engaged for a month's trial period In the first Instance, The defendants,! however, terminated his enployiasnt at the end of the first week, paying him an additional week's salary in lieu of notice. The plaintiff's claim was, therefore, for the balance of a month's salary, amounting to £65,18. The defendants denied that there was any engagement for a month's trial period, and contended that as the plaintiff was paid vwately they were entitled to dismiss Mm with a week's notice, or with a week's salary in lieu of notice.


The learned Judge, having heard evidence from the plaintiff and from Mr Arti for the defendants, Preferred the evidence of Mr Arthur, and found that the plaintiff had failed to prove his claim to have been engaged for a month in the first instance. He hold that on the ploadings as they stood no other question aroo, and in particular that no question arose as to whether, apart from the alloged angagement for a month, the notice received by the plaintiff was a proper notice. After the conclusion of the evidence, and before giving Judgment, the learned Judge had invited councel for the plaintiff to consider whether he was satisfied with the particulars of claim as they stood - a clear invitation, as it seems to us, to amnd the particulars of claim so as to put forward an alternative claim that the plaintiff was dismissed without reasonable notice. Counsel for the plaintiff, however, expressed himself as satisfied with the particulars of claim as they stood, so that the learned Judge was left with only the one to deterine, namely, whether the plaintif had made out his case that he was engaged for one month.


In these circumstances the learned Judge, having found that the plaintiff had failed to ostablish the case set up in the particulars of claim, concluded his Judgment as follows: "The plaintiff therefore cannot succeed. But I am not altogether satisfied that proper justice whould have been done if judgment were given for the defendants, and this seems to me to be one of the rare caases in which the plaintiff should be non-suited".


Since the Introduction of the 1083 Rules of the supreme Court, the High Court retains no pother to enter a non-suit - sea Fox v. Star Newspaper (1900) Appeal Cases, page 19. But In the County Court the power survives, and la specifically preserved by Order 23, rule 3 of the County Court Rules, which is In the following terms: "(1) Where the plaintiff appears but does not prove his claim to the satisfaction of the Court, it =say either non-suit him, or give Judgment for the defendant. (2) Where - (a) after a plaintiff has been non-suited; or (b) after an action has boon struck out; a subsequent action for the socio or substantially the same cause of action is brought before payment of any costs awarded to the defendant when the plaintiff was non-suiterd or the proceedings were struck out, the Court may stay the subsequent action untill such coats have been paid".


It follows that in the present case on the Judgment of the learned Judge, the plaintiff would be free, upon payment of the defendant' costs, to institute a frash action in whidch he would be able to make a second claim for damages for wrongful dismissal, which in the light of what the learned Judge said, would he doubt be based on the absence of reasonable notice. This, the defendants say, would be a hardship to thom, and on this appeal they contend that the learned Judge was wrong to non-suit the plaintiff, and that he ought to have entered Judgment for the defendants.


Three submissions have been advanced on behalf of the defendants in support of the appeal. Firetly, it has been contended that the power to non-suit a plaintiff cannot be exoroised withut the consont of the plaintiff. Here the plaintiff never consented to be non-suited, and was never invited to consent. secondly, it has been urged that the rule has no appliontion to a case such as the present, where the plaintiff's evidence, if it had been accepted, would habe fully proved his case. This is not a case, it is pointed out, in which the plaintiff's evidence fell short of proving his plosded case; on the countrary, the evidence would have proved the claim but for the fact that it was disbolieved. The defendant' third submission is that, assuming the rule to be applicable to the circumstances of this case, the learned Judge failed to exercise his discretion judiolally, in that he aboso to non-suit the plaintiff, without being invited to do so, after the plaintiff by his counsel had specifically declined an invitation to around the particulars of claim.


In order to appreciate the significance of the defendant' first submission it is necessary to refer briefly to the history of non-suit In the High Court and County Court respectively. lie fore the Judicature Act of 1873 there Is no doubt that In the Before law courts, whioh were the predecessors of the Queen's Bench Division of the High Court, the power to enter a non-suit existed at oarsman law, In the case of the County Courts, however, their Jurisdiction was wholly statoitory, and the power of the Court in relation to non-suit dofinod by section 79 of the County Courts Act, 1846, the material part of which provided aa followss "if ha shall appear, but shell not make proof of his demand to the satisfaction of the Court, It shall be lawful for the Judge to non-suit the plaintiff, or to give judgment for the defendant".


Though the wording Is different, the substance of that provision is In oitr judgment precisely the same aa that of the presettf. Order 23, rule 3 (1) of the County Court Rules, In 1852 in the case of Stancliffe v. Clarke, volume 7 Exchequer, page 439, It was laid down by Baron Parke, in relation to section 79 of the Act of 1D4S, "that the term 'non-suit' la there used in the aame sense as in ordinary law proceedings", by which we understand him to have meant that non-suit had the same moaning in relation to proceedings in the County Court as it had at cammon law. The Judicature Act of 1873 contained a provision whereby, in the High Court a Judgment of nonsuit became a bar to subsequent procoedins In the same way as Judgment for the defendant would bo} and shortly afterwards a similar provision was introduced Into the County Court Rules, Thla situation persisted, so far as the High Court was eoncerned, until 1883, when the rules of the Supreme Court case Into force. These, as previously nontioned, contained no provision whatever for non-suit, and since that date non-auit In its strict sense has found no place in the procedure of the High Court. We uao the phrase "In its strict sonao" bocauao there have been a number of oacoa in which the oppression "non-suit" has been loosely used In the High Court, where all that has boon noant has boon that the defendant had no case to answer - see, for example, Fletcher v. London & North Western Railway company, ( 1092 volume 1 Queen's Bench, page 122) where we think It Just be clear that the term Is used in this loose sense.


The history of non-suit in the County Court has been somewhat different, for there, since LOSS, tho power to non-auit hao been The effect of section 88 of the country court Act, was subtantially to ro-onact section 79 of the Act of 1846, and, as has already been pointed out, the present rule in the County Court Rules of 1936 is for all practical purposes the same. For 70 years, therefore, there has been a diversence between the High Court and County Court practice, so far as non-suit is concerned. This circumtanco makes it imposaible in our judgment to invoice section 100 of the County Courts Act, 1934, so as to interpret the County Court Rule relating to non-suit by reforence to the present practice. If the High Court. In relation to this we vonture to differ from the view expessed by the learned editors of the County Court Practice in the first paragraph of the notes to Order 23, rule 3. Having regard to the similarity between the present rule and the provision of section 79 of the Act 1846, we entertain no doubt that the powers of the County Court today in rolation to non-suit must be related to the practice of the old Courts of Common law as it existed prior to 1873.


In support of his proposition that, by the practio of the old common law courts, the power to non-suit a plaintiff could not be exercised without the plaintiff's consont, counsel for the defendants reliod in the first instance on Stancliffe v. Clarke, where Baron Farias said! "It Is optional with the plaintIff whether he will subalt to bo non-suited; and In the event of Ma refusing, if there Is no case to warrant a verdict for him, It is the duty of the Judge to direct the Jury to find for the defendant", Reliance was also placed on Robinson v. Lawrence, ...

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    ...would not arise, and where a long overdue date for trial was fixed and imminent. Nonsuit In Clack v Arthur's Engineering LtdELR ([1959] 2 QB 211), a county court action, the court concluded: "At any time up to verdict, if the plaintiff elected to be nonsuited he was entitled to it as of rig......
  • Sheila Gilham and Another v 1. William Browning and Another
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    ...wish to be nonsuited. He held that the entitlement to be nonsuited as of right referred to in Clack v. Arthur's Engineering Limited [1959] 2 Q.B. 211 had to be modified in the light of the later case of Castahno. Mr Goodman submits that both these decisions were wrong. 22 Mr Goodman submits......
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    ...refd to. [para. 19]. Hoole v. Advani (1996), 39 C.B.R.(N.S.) 122 (B.C.S.C.), refd to. [para. 19]. Clack v. Arthur's Engineering Ltd., [1959] 2 Q.B. 211 (C.A.), refd to. [para. 22]. Alexander v. Rayson, [1936] 1 K.B. 169 (H.C.), refd to. [para. 22]. Ryder v. Wombwell (1838), L.R. 4 Exch. 32,......
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    • DSC Publications Online Nigerian Supreme Court Cases. 1976 Preliminary Sections
    • 15 November 2022
    ...Ltd. (1959) 2 A.E.R. p.503. 165 Clarapede v. Commercial Union Association 32 W.R. 263 341 Clark v. Arthur's Engineering Ltd. (1959) 2 Q.B. 211 at 217. 114 Claude Nablan v. George Nablan (1967) 1 A.N.L.R. 47. 8 Corner v. Bloomfield 55 Cr App. R 305. 125 Commissioner for Local Government Land......
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