Gore v Van Der Lann
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SALMON |
| Judgment Date | 29 November 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J1129-4 |
| Date | 29 November 1966 |
| Court | Court of Appeal |
[1966] EWCA Civ J1129-4
In The Supreme Court of Judicature
Court of Appeal
Civil Division.
Appeal from order of Judge Stansfield at Liverpool County Court.
Lord Justice Willmer,
Lord Justice Harman and
Lord Justice Salmon.
Mr I.H. MORRIS JONES (instructed by Messrs Cree, Godfrey & Wood, Agents for Mr. Thomas Alker, Town Clerk, Liverpool) appeared on behalf of the Appellants (Interveners).
Miss ROSE HEILBRON, Q.C., and Mr DAVID L. BULMER (instructed by Messrs E. Rex Makin & Co., Liverpool) appeared on behalf of the Respondent (Plaintiff).
LORD JUSTICE WILIMER: The Corporation of Liverpool has for some years been in the habit of issuing free passes for use on their buses to elderly persons in receipt of what 13 now called a "retirement pension". On the 24th April, 1963, the plaintiff, who was a lady then nearly seventy-nine years old, applied for the Issue of such a free pass, and for that purpose signed a printed form supplied by the Corporation, which provided as follows: "In consideration of my being granted a free Pass for use on the buses of Liverpool Corporation, I undertake and agree that the use of such Pass by me shall be subject to theconditions overleaf, which have been read to or by me prior to signing". The "conditions overleaf" Included the following: "(4) The Pass is issued and accepted on the understanding that It merely constitutes and grants a license to the holder to travel on the Liverpool Corporation's buses, with and subject to the conditions that neither the Liverpool Corporation nor any of their servants or agents responsible for the driving, management, control or working of their bus system, are to be liable to the holder or his or her representative for loss of life, Injury or delay other loss or damage to property however caused. (5) The Pass is issued and accepted on the further understanding that the pass holder, whenever he or she makes to board and is traveling on the Corporation's buses during permitted hours or on journeys for which the Pass may be used, shall be deemed on every such occasion to be making use of his or her Pass and to be traveling free and subject to the conditions of travel imposed by such Pass until such times as he or she tenders and pays a proper fare for the journey or in other manner expressly indicates to the conductor or other duly appointed representative of the Corporation that he or she does not Intend to make use of his or her free Pass for the occasion or journey in question".
In response to her application the plaintiff was duly issued with a free pass, described as a Pensioner's Pass, on the back of which was endorsed the following clause- "NOT TRANSFERABLE. Issued subject to the conditions of grant set out in the written form of application previously made and signed by the pass-holder and to the Bye-Laws and Regulations of the Corporation and upon the express condition that the Corporation and their servants shall be under no liability, either contractual or otherwise, to the pass holder when boarding, a lighting from or being carried on Corporation vehicles. W.M. HALL, General Manager".
On the 7th November 1965 the plaintiff was boarding a bus at an authorized stop when, as the bus moved off, she fell and was dragged along the ground, sustaining Injury. She brought an actionin the Liverpool County Court against the conductor, alleging that the accident was due to his negligence in ringing the bell and causing the bus to move off while she was in the act of boarding, and in falling to take proper precautions for her safety.
The defendant filed a defense denying negligence, and relying in the alternative on the conditions subject to which the plaintiff's free Pass was issued. The material allegations were as follows; "(7) In particular the said pass or license was issued and accepted on the understanding that it merely constituted and granted a license to the plaintiff to travel on the Liverpool Corporation's buses with and subject to the condition that neither the Liverpool Corporation nor any of their servants or agents responsible for the driving, management, control, or working of their bus system, were to be liable to the plaintiff for injury or other loss or damage however caused. (8) The defendant, the conductor of the said motor bus, was a servant of the defendants (sic) of the class referred to in the said term or condition or understanding". I have read that paragraph of the defence as it was drafted, although it is plain that the Liverpool Corporation were not defendants in the suit. "(9) Further the defendant ratified the action of the Liverpool Corporation in obtaining such undertaking from the plaintiff. (10) By reason of the foregoing the plaintiff is not entitled to bring these proceedings or to succeed in these proceedings against the defendant in any circumstances whatsoever'".
On the same day as the defence was filed a summons was issued on behalf of the Liverpool Corporation applying for an order that all further proceedings in the plaintiff's action be stayed. The grounds of the application were that it was a condition of the plaintiff's free pass that the servants of the Corporation, including the defendant, should not be liable for injury to the plaintiff, that the Corporation were obliged to meet and satisfy any judgment obtained against the defendant, and that in the premises by bringing this action the plaintiff was acting so as to defraud the Corporation The application was made in pursuance of section 41 of the Judicature (Consolidation) Act, 1925, which provides as follows; "No cause orproceeding at any time pending in the High Court or the Court of Appeal shall be restrained by prohibition or injunction, but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might formerly have been obtained, whether unconditionally or on any terms or conditions, may be relied on by way of defence there to. Provided that (a) Nothing in this Act shall disable either of the said courts, If it thinks fit so to do, from directing a stay of proceedings in any cause or matter pending before it; and (b) Any person, whether a party or not to any such cause or matter, who would formerly have been entitled to apply to any court to restrain the prosecution there of, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule or order, In contravention of which all or any part of the proceedings in the cause or matter have been taken, may apply to the High Court or the Court of Appeal, as the case may be, by motion in a summary way, for a stay of proceedings in the cause or matter, either generally, or so far as may be necessary for the purposes of justice. And the court shall thereupon make such order as shall be just". By section 103 of the County Courts Act 1959 it is provided that in any case not expressly provided for by or in pursuance of that Act, the general principles of practice in the High Court may be adopted and applied to proceedings in a county court.
The Corporation's application was dismissed by the registrar, and on appeal by His Honor Judge Stan field No reasons appear to have been stated either by the registrar or by the learned judge, and indeed it is complained by counsel for the Corporation that he was never really given a chance to develop his argument. The Corporation now appeals to this court, and we have had the benefit of a full argument.
The case for the corporation is that the plaintiff's free pass constituted no more than a license which was granted subject to conditions: It has been contended that the plaintiff, having accepted the benefit of the license, must also accept the conditions subject to which it was issued, and is therefore bound, as againstthe Corporation, by the condition that neither the Corporation nor its servants are to be liable for injury caused to her. The Corporation is therefore entitled, under proviso (b) to section of the Judicature Act, to an order restraining the prosecution of the plaintiff's action against the defendant. In support of this contention we were referred to White v. Harrow, (1902), 85 law Times Reports, page 677, which was cited as an instance of a case where a person, not a party to the action, successfully Invoked his contract with the plaintiff to obtain an injunction restraining the prosecution of an action brought by the plaintiff against the defendant in breach of the terms of that contract. We were also referred to a dictum of Lord Justice du Paroq (as he then was) In Cosgrove v. Horsfall, (1946), 175 Law Times Reports, page 334, where the circumstances were similar to those of the present case, in that the action was brought by the holder of a free pass against an employee of the London Passenger Transport Board. The learned lord justice in that case clearly envisaged the possibility of the Board applying for the very form of relief now sought by the Liverpool Corporation. He said at page 335. "I will express no opinion on the question which counsel for the defendant told us he had considered, whether the Board could have applied successfully to stay the present action under section 41 of the Supreme Court of Judicature Act 1925; see especially proviso (b). We are not now concerned with the rights of the Board, but it must not be assumed that, if the plaintiff caused there to suffer loss by breach of the condition, they were without remedy and are now necessarily without redress".
Subsequent to the hearing before the learned judge, and for the purposes of this appeal, the...
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