Knowles v Roberts
| Jurisdiction | England & Wales |
| Judgment Date | 1887 |
| Date | 1887 |
| Year | 1887 |
| Court | Court of Appeal |
Pleading - Striking out Pleadings as unnecessary or embarrassing -
In an action to enforce the compromise of a former action brought in assertion of rights of water, as to which disputes had arisen, Plaintiff will not be allowed, by setting out in his statement of claim the allegations as to his right and the corresponding liabilities of the Defendant which were contained in his former statement of claim, to relitigate the questions raised in the former action, and intended to have been finally disposed of by the compromise.
Such allegations were accordingly ordered to be struck out under Order XIX., r. 27, as embarrassing and unnecessary, though a motion for that purpose had been refused by the Court below.
APPEAL from the dismissal by the Vice-Chancellor of the Lancaster Chancery Court of an application by the Defendant under Order XIX., r. 27, to strike out certain paragraphs (3 — 12) contained in Plaintiff's statement of claim, as unnecessary and embarrassing.
The action was commenced on the 29th of August, 1887, in the Lancaster Chancery Court for specific performance of terms of an agreement of the 22nd of April, 1885, for the compromise of a former action commenced in the High Court, in May, 1883, by Plaintiff against the Defendant to this action in respect of certain water rights, and claiming a declaration that according to the true construction and intent of the terms of agreement, Defendant was not entitled to do certain acts.
Plaintiff was the owner and occupier of the Tottington Mill Print Works, on the left bank of a stream, called the Whalves Brook, near Bury, in the county of Lancaster, and Defendant was the occupier, as tenant to his father, of the Stormer Hill Bleach Works, on the right bank of the Whalves Brook.
In the former action, the Plaintiff alleged, by his statement of claim, that he was entitled to a clough or weir in the Whalves Brook, with certain specified rights arising out of his alleged title and corresponding liabilities on the part of the Defendant. The Defendant, on the other hand, by his statement of defence in the former action, denied the Plaintiff's alleged rights and the corresponding liabilities, and also asserted rights on his part which were inconsistent with those claimed by the Plaintiff.
At the trial of the former action at the Assizes, on the 22nd of April, 1885, the action was settled upon terms which defined how in future certain rights over the Whalves Brook were to be exercised by Plaintiff and Defendant.
On the 29th of August, 1887, the present action was commenced, and the statement of claim, delivered on the 22nd of November, 1887, set out (in paragraphs 3 — 12, inclusive) verbatim, or nearly so, a great number of the allegations which had been made by the Plaintiff and denied and put in issue by the Defendant in the former action.
In these circumstances, Defendant had taken out a summons under Order XIX., r. 27, asking that paragraphs 3 — 12 inclusive, of Plaintiff's statement of claim in this action might be struck out as irrelevant and unnecessary, and as tending to embarrass the Defendant in his defence to the action.
Maberly, for the Defendant, in support of the summons in the Court below.
J. M. Astbury, contrà.
Vice-Chancellor Bristowe, being of opinion that the allegations sought to be struck out could not be said to be absolutely unnecessary, or embarrassing, in the sense of the Defendant not knowing what case he had to meet, and that they did not tend to prejudice or delay the fair trial of the action, refused the applicationF1.
From this order the Defendant had appealed.
Romer, Q.C., and Maberly, in support of the appeal:—
The paragraphs complained of, which reiterate in substantially the same language the points in dispute in the former action, are unnecessary and embarrassing, inasmuch as the Defendant is called upon again to try the very issues which by the terms of the agreement were finally disposed of once for all.
[BOWEN, L.J.:— Does the Defendant admit that he is bound by the agreement to compromise?] Certainly he does, but if it be open to the Plaintiff to go into all these matters which are behind the agreement, of what avail is the agreement, as the parties will be remitted to the position which existed before the agreement was entered into?
The whole question is, what is the true construction of the agreement, having regard to the surrounding circumstances, and whether there has been any breach by the Defendant?
It was only necessary for the Plaintiff to have stated how the brook ran, and how it was used, and then shortly the statements in dispute pro and con in the former action.
[They were stopped.]
J. M. Astbury, for the Respondent:—
Except in very extreme cases, or where a wrong principle has been adopted, the Court of Appeal will not interfere with the exercise by the Judge of First Instance of his discretion as to retaining or striking out pleadings: Watson v. RodwellF2.
[COTTON, L.J.:— I am not satisfied that the Vice-Chancellor did not exercise his discretion upon a wrong principle.]
In order to put a construction upon the agreement the Court must understand the position of the parties, and know what was the exact state of circumstances when they entered into the agreement. An essential part of those circumstances would be the rights to which either party was entitled, either by...
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