Fallon v Calvert
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE PEARCE |
| Judgment Date | 18 December 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J1218-5 |
| Docket Number | 1955. F. No. 439 |
| Court | Court of Appeal |
| Date | 18 December 1959 |
(Professionally known as Jack Fallon) and
[1959] EWCA Civ J1218-5
Lord Justice Hodson and
Lord Justice Pearce
In The Supreme Court of Judicature
Court of Appeal
Mr John G. Wilmers (instructed by Messrs Kenneth, Brown, Baker Baker) appeared on behalf of the Appellant (Defendant).
Mr Frank Whitworth and Mr Peter J. Crawford (instructed by Mr J.E. Williams) appeared on behalf of the Respondent (Plaintiff)
I will ask Lord Justice Pearce to read the Judgment of the Court.
This is an appeal from an order of His Honour Percy Lamb, Q.C., Official Referee, who on the 4th November 1959 directed the defendant to attend before him to assist in making a repert pursuant to an order of Mr Justice Paull. The defendant contends that the Official Referee had no jurisdiction to make such an order.
The plaintiff is a manager and agent for theatrical artistes, and the defendant is a professional trumpeter. Substantially the claim of the plaintiff is for commission on the defendant's earnings due to him under a contract in writing. The defendant counterclaimed rectification of that agreement.
At the trial before Mr Justice Devlin, evidence was given by the plaintiff, the defendant arid others. Details of the defendant's earnings were not given, but the defendant admitted through his counsel that ho had sworn a false answer to interrogatories, and that his books contained false entries.
On the 3rd March 1959 the learned Judge made an interim order containing inter alia the following paragraph: "It is ordered that the defendant do within seven days from the date hereof deliver to the plaintiff a list of the gross earnings of the defendant as a solo artiste or for himself and orchestra for a period of five years commencing on 1st November 1951". No order for an account has so far been made, although a claim for an account is included in the statement of claim.
The defendant's purported compliance with this order of Mr Justice Devlin did not satisfy the plaintiff, and on the 23rd April 1959 Mr Justice Paull by consent made an order containing the following paragraph: "And it is ordered that this matter be referred to an Official Referee to hoar and report on the gross earnings of the defendant as a solo artists or for himself and orchestra for a period of five years commencing on the 1st day of November 1951".
On attending before the Official Referee the plaintiff was minded to secure the attendance of the defendant for cross-examination, and in order to establish, if he could, the extent of the earnings on which commission would be due, having in his possession (as we wore told) certain contracts between the plaintiff and third parties which would or might assist to that end.
It is conceded by both counsel that the real object of the Official Referee in ordering the defendant to attend the hearing was to procure that he should enter the witness-box to answer the cross-examination of plaintiff's counsel. The plaintiff can, of course, ensure the defendant's attendance by a subpoena, but in that case his counsel would have to call and examine the defendant as his own witness.
In a civil suit the function of a court in this country (unlike that of courts in some other countries) is to decide cases on the evidence that the parties think fit to call before it. It is not inquisitorial. In re Enoch and Zaretzky Bock & Company, (1910 volume 1 King's Bench Division, page 327) decided that a judge or umpire had no right to call a witness in a civil action without the consent of the parties. Lord Justice Fletcher Moulton at page 332, in dealing with a previous case of ( Coulsen v. Disboreugh 1894 volume 2 Queen's Bench Division, page 316) says: "One of the learned Judges, the Master of the Rolls (Lord Esher) does, however, give utterance to a dictum which has boon relied on by counsel for the respondents. He says this: 'If there be a person whom neither party to an action chooses to call as a witness, and the Judge thinks that that person is able to elucidate the truth; the Judge, in my opinion, is himself entitled to call him'. If that means to call hire when either side objects, I au satisfied that there is no basis for that dictum; but it must be remembered that there is no suggestion in. the report or the Judgments that the...
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Bank of Tokyo Ltd v Karoon (Note)
...that such a witness might well enable him the better to reach a just decision. (See Enoch v. Zaretzky Bock & Co. (1910) 1 K.B. 327 and Fallon v. Calvert (1960) 2 Q.B. 35I am therefore far from satisfied that such a wide principle of public policy exists. But, even were it to exist, it wou......
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Courts 2
...other common law jurisdictions is to decide cases on the evidence that the parties think fit to call before it. See: Fallon v. Calvert (1960) 2 Q.B. 201. In re Enoch v. Zaretzky Bock & Co’s Arbitration (1910) 1 K.B. 327; Jones v. National Coal Board (1957) 3 All E.R. 155.” - Per Ogwuegbu, J......
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Table of Cases
...Faleye v. Otapo (1995) 3 N.W.L.R. (Pt. 381) 1……………...................................................255, 256 Fallon v. Calvert (1960) 1 All E.R. 281; (1960) 2 Q.B. 201…………....................................…41, 380 Famudoh v. Aboro (1991) 9 N.W.L.R. (Pt. 214) 210…………............................
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Preliminary Sections
...[1985] 16 N.S.C.C. (pt.1) 322; (1985) 1 N.W.L.R, (pt.2) 299. 316 Fabunmi v. Agbe [1985] 16 N.S.C.C. (pt.1) 322. 122 Fallon v. Calvert (1960) 1 All E.R. 281 Falobi v. Falobi [1976] 10 N.S.C.C. 576. ............................................................ 197 Falobi v. Falobi (1976) 9 & 1......