Daws v Daily Sketch and Daily Graphic Ltd Darke v Same
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE HARMAN |
| Judgment Date | 16 December 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J1216-2 |
| Court | Court of Appeal |
| Date | 16 December 1959 |
(Consolidated by Order dated 30th October, 1959.)
[1959] EWCA Civ J1216-2
Lord Justice Willmer and
Lord Justice Harman
(Interlocutory Appeal)
In The Supreme Court of Judicature
Court of Appeal
Revised
MR. GILBERT BEYFUS, Q.C., and MR.L.J. BELCOURT appeared on behalf of the Plaintiffs (Appellants), instructed by Messrs. Edward Thompson & Co.
MR. NEVILLE FAULKS, Q.C., and MR. D.C-H. HIRST appeared on behalf of the Defendants, (Respondents), instructed by Messrs. Swepstone, Walsh & Son.
: This is an application for leave to appeal, and to appeal out of time, against an Order made by Mr. Justice Havers, whereby he allowed an appeal from Master Harwood and made an Order for the consolidation of two actions. I may say at once that on both sides technical questions arise. The Appellants are technically out of time, and they, in their turn, raise a technical point against the Respondents with which I will deal in one moment.
The first action is an action by an Officer in the Metropolitan Police Force and is brought against the proprietors of a newspaper in respect of an article published in that newspaper whereby the Plaintiff alleges that he was libelled. The second action is brought by a group of officers who are associated with the Plaintiff in the first action in the same department of the Metropolitan Police. The second action is brought by those Plaintiffs against the same Defendants in respect of the same article.
The defences to the two actions are not the sane. It is true that in both actions there is a denial that the words are defamatory. But in the case of the first action the only other defence is as to damages, and in connection with that it is pleaded that an offer was made to publish an apology in a form set out in the defence, which offer was not accepted by the Plaintiff. With regard to the second action, however, there is an issue raised as to whether the words complained of in the article refer to, or are capable of referring to, the Plaintiffs or to any of them. There is also in that case an issue as to damages, but that issue is not complicated, as in the first action, by any allegation that an apology was made.
The first action, brought by Mr. Daws, I will for convenience refer to as Action No.167; and the second action, in which several other Plaintiffs are joined, I will refer to as No.848. The question arose on the Summons for Directions in Action No.848. It should be said, to make the matter clear, that there was a good deal of difference in time between the progress of the two actions. In the first action, No.167, the Statement of Claim was delivered on the 27th February of this year, and the Defence was delivered on the 31st March. There was a Summons for Directions in that action some time in May. The Writ in the second action was not issued until the 25th June of this year, that is to say after the Summons for Directions in the first action. The Statement of Claim was delivered on the 27th June, and the Defence was delivered on the 16th July.
When it came to the Summons for Directions in the second action, No.848, one of the reliefs asked for was an Order consolidating the two actions. The same Solicitors acted for both sets of Plaintiffs, and there is no doubt that the Solicitors appearing for all the Plaintiffs were duly informed that the application for consolidation was going to be made on the Summons for Directions in Action No.848. But no Summons in Action No.167 was issued. I make that observation bearing in mind that a form of Summons for use in such circumstances is provided in the Annual Practice, and appears as Form No. 4D, 1 on page 2,374 of the book. No such Summons was taken out. When the matter came before the learned Master he declined to make any Order consolidating the two actions.
On appeal to the learned Judge, the learned Judge took the other view. He apparently regarded the fact that notice had not been given in the first action, No.167, as a mere technicality, and on the merits of the application he made an Order consolidating the two actions. The Order was in fact made in Action No.848. So far as I know, up to date no Order has been made in Action No.167. In the absence of any Summons in Action No.167, I do not see how any Order could have been made in that action.
In those circumstances, the first point taken by the Appellants is that there was no jurisdiction in the learned Judge to make any Order at all affecting Action No.167. It has been argued before us very forcibly by Mr. Faulks, for the Defendants, that that point is the merest technicality, that there is no merit in it at all, that the common Solicitors knew all about it all the time, and that it would have been the easiest possible matter to cure, and, indeed, to cure even now, by drawing up an Order in each of the two actions. But I have drawn attention to the provision of a form suitable for use in such a case as this, and I am bound to say that on this issue in my judgment the Appellants must succeed. I think it is a fatal objection, however unmeritorious it may be, that an Order was made in Action No.848 purporting to direct how Action...
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