Instrumatic Ltd v Supabrase Ltd

JurisdictionEngland & Wales
Judgment Date03 February 1969
Judgment citation (vLex)[1969] EWCA Civ J0203-1
Date03 February 1969
CourtCourt of Appeal (Civil Division)
Instrumatic Limited
Plaintiffs Appellants
Supabrase Limited
Defendants Respondents

[1969] EWCA Civ J0203-1


The Master of The Rolls (Lord Denning)

Lord Justice Edmund Davies and

Lord Justice Phillimore

In The Supreme Court of Judicature

Court of Appeal

Appeal of plaintiff from order of His Honour Percy Lamb, Official Referee, dated December 20th 1968.

Mr. J. ARCHER (instructed by Messrs. Dale & Newbery) appeared on behalf of the Plaintiffs Appellants.

Mr. D. WRIGHT (instructed by Messrs. Allibones) appeared on behalf of the Respondent Defendants.


The Official Referee made order dismissing this action for want of prosecution. The plaintiffs seek to appeal to this Court. The defendants take a preliminary point. They say that an appeal to this Court lies only on a point of law: and that there is no point of law here. The Official Referee, they say, exercised his discretion: and the manner of its exercise is not a point of law.


There are many tribunals from which an appeal lies only on a "point of law": and we always interpret the provision widely and liberally. In most of the cases the Tribunal finds the primary facts (which cannot be challenged on appeal): and the question at issue is what is the proper inference from those facts. In such cases, if a Tribunal draws an inference which cannot reasonably be drawn, it errs in point of law, and its decision can be reviewed by the Courts. That was settled, once and for all, in Edwards v. Bainstow, (1956 A.C. p. 14). In other cases the question is whether, given the primary facts, the Tribunal rightly exercised its discretion of a Tribunal, just as it can review the discretion of a Judge in Chambers, and on Like grounds. The principles stated in Ward v. James (1961 1 Q.B. at p. 293), apply as much to the discretion of a Tribunal as to the discretion of a Judge. There was one case cited to us which appeared at first sight to be to the contrary. It was ( Theo. Conway Ltd. v. Henwood 1934 50 T.L.R. 474), where it was held that an appeal did not lie to this Court from an order of the Official Referee dismissing the action for want of prosecution. But on examining the case, it will be seen that Counsel did not raise any point about the wrong exercise of discretion. So it is no decision on the point. Moreover, it was an interlocutory decision of two Lords Justices which is notbinding on a Court of three.


So the preliminary objection fails and I turn to consider whether the Official Referee exercised his discretion rightly or not. Instrumatic Limited sold and delivered quantities of precision instruments to the defendants, Supabrase Limited. The total value was £18,461 19s 8d. The defendants made several payments on account. Eventually the plaintiffs said there was a balance of £8,782 0s 11d. owing to them. On 4th January 1966, they issued a writ for the amount owing. The plaintiffs took out a summons under Order XIV. The defendants put in an affidavit of defence in which they admitted that nearly £8,000 was due. But they said they had a Counterclaim because there was bad workmanship and the goods did not come up to standard. They counterclaimed £2,000 as the cost of repairs, and, in addition, £20,000 for loss of profit on all the other machines they might have sold. The master did not think much of the counterclaim for loss of profits. He thought the £2,250 was clearly owing and made an Order for that sum to be paid to the plaintiff's solicitor. He gave the defendants leave to defend as to the balance, and referred the case to an Official Referee.


The pleadings were closed on 5th June 1966. Both sides ought then to have prepared a list of documents. Neither did so. There were some negotiations up to August 1967. But then the matter went to sleep for fourteen months. Then, in October 1968, the plaintiffs set about to prepare their list of documents and gave one month's notice of intention to proceed. After the month was up, the plaintiffs duly delivered their list of documents. And they took out a summons for further and better particulars of the defence and counterclaim. It was not till then that the defendants, on 16th December 1968, took out a summons to strike out the claim for want of prosecution.


On 20th December 1968, the Official Referee acceded to the application. He struck out the claim for want of prosecutors. He ordered that the sum of £2,250 (which the defendants had paidover) should be repaid to them. He struck out the counterclaim, too, for he could not allow that to go on by itself, see the ( Zimmer Case 1968 1 W.L.R. 1349).


I cannot agree with the Order made by the Official Referee. The basic fact is that the claim was virtually undisputed and £2,250 had already been paid. It is very, very rare for the Court to strike out an admitted claim. It has been done once, but that was a most exceptional case. But there is this further fact. The defendants had a counterclaim. If they had any faith in it, they should have pressed on with it. They cannot justly complain of delay of the plaintiff on the claim, when they were equally guilty of delay on the counterclaim. It was as much their own fault as the...

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