Martell v Consett Iron Company Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE JENKINS,MR JUSTICE VAISEY
Judgment Date03 Feb 1955
Judgment citation (vLex)[1955] EWCA Civ J0203-4

[1955] EWCA Civ J0203-4

In The Supreme Court of Judicature

Court of Appeal

Before:-

Lord Justice Jenkins,

Lord Justice Hodson and

Mr Justice Vaisey.

Martell & Others
Respondents
and
Consett Iron Company Limited
Appellants.

Sir ANDREW CLARK, Q.C., and Mr K.J.T. ELPHINSTONE (instructed by Messrs Allen & Overy) appeared on behalf of the Appellants.

The Hon, CHARLES RUSSELL, Q.C., and Mr G.H. NEWSOM (instructed by Messrs Gerrish & Co.) appeared on behalf of the Respondents.

LORD JUSTICE JENKINS
1

The Plaintiffs in the action in which this appeal arises are Mrs Laline Marguerite Lucie Martell, who is the estate owner in fee simple and beneficial tenant for life of certain areas of land on either bank of the River Derwent at or near Consett in the County of Durham, and six other persons who as Trustees for an unincorporated society known as the Derwent Angling Association hold a yearly tenancy granted by Mrs Martell's predecessor in title of the right of fishing in the waters of the River Derwent to which Mrs Martell's riparian interests extend. The Defendants are the Consett Iron Company Limited, who maintain and operate certain works near the River Derwent at a point upstream of Mrs Martell's riparian property.

2

The Plaintiffs' claim in the action is for an injunction and damages in respect of the alleged pollution of the waters of the River Derwent flowing past or over Mrs Martell's land by the discharge into the river through a tributary known as the Howden Burn of heated and noxious effluents from the Defendant Company's works. The appeal is brought by the Defendant Company from an Order of Mr Justice Danckwerts dated the 22nd October, 1954, refusing an application by the Defendant Company that all proceedings in the action might be stayed until further Order on the ground that it was illegally maintained and oppressive and vexatious and an abuse of the process of the Court.

3

The general allegations to the effect that the action is oppressive and vexatious and an abuse of the process of the Court are grounded solely on the allegation of illegal maintenance. The Defendant Company's contention is that the action is being illegally maintained and is for that reason alone an action which is oppressive and vexatious and an abuse of the process of the Court and should, accordingly, be stayed unless and until it ceases to be so maintained. Thepersons by whom the action is said to be illegally maintained are an unincorporated body known as the Anglers' Co-operative Association (hereinafter referred to as "A.C.A.") and a company known as the A.C.A. Trustee Company Limited (hereinafter referred to as "the Trustee Company").

4

A.C.A. was formed in the year 1948, and is governed by rules, of which Rule 1, headed "Objects", is in these terms: "The objects of the Association are: (a) To promote and protect the interests of anglers, the owners and occupiers of fisheries (actual or potential) in Great Britain and Northern Ireland and to assist such owners and occupiers (financially or otherwise) to secure the protection of the law against any invasion of their legal rights. (b) To watch over, maintain and improve the condition, purity and volume of rivers, lakes and other freshwater, and of the coastal sea water in and around Great Britain and Northern Ireland. (c) To promote, encourage and assist improvements in methods of preventing pollution and of purifying effluents generally and research in such matters and all other matters affecting angling, fish culture and kindred subjects".

5

Rules 2 to 12, headed "Membership and Subscriptions", contain a number of provisions concerning these matters.

6

Rules 2 and 3 are in these terms: "Membership and Subscriptions. 2. Any person, firm, incorporated company, club, or association interested in angling, fish culture, the manufacture or sale of fishing tackle or accessories, catering, or the condition, purity or volume of inland or coastal waters, shall be qualified to be a member of this Association. 3. The membership shall consist of ordinary members, Trade members and Club members, and such other class or classes as the Committee shall determine".

7

The remaining rules in this group include provisions under which the annual subscription for an ordinary member is£1 with reductions in certain cases, the subscription for life ordinary membership is £10 and the subscription for club membership is at a graduated rate, according to the membership of the club, with a minimum of £1. 1. 0d. for a club with a membership of 50 or less and a maximum of £10. 10. 0d. for a club with a membership of more than 500. Trade membership is thus defined in Rule 8: "8. Trade members shall be persons, firms and companies engaged or interested by way of trade or business in the manufacture or sale of fishing tackle, accessories or gear, fish culture or in catering or any other trade or business connected directly or indirectly with angling". Rule 9 provides that the annual subscription for a trade member shall be such a sum not being less than £1. 1. 0d. as the Committee shall assess.

8

The rules also provide for the constitution of a Council of the Association by which under Rule 19 the policy of the Association shall be determined and controlled", and for the management of the affairs of the Association by a Committee which, under Rule 28, shall have control of the finances and affairs of the Association and shall have absolute discretion in administering the funds of the Association in accordance with its objects and the policy laid down by the Council, or otherwise carrying out the objects of the Association under the rules. The rules also contain (in Rule 25) provisions designed to ensure that the members for the time being of the Committee shall also constitute the Board of Directors of the Trustee Company, their qualification shares being paid for out of the funds of, and held in trust for, the Association, and liable to transfer as directed by the Committee upon the holder vacating office.

9

The Trustee Company was incorporated on the 5th June, 1949, with a nominal capital of £100 divided into 2,000 shares of 1/- each, of which 12 shares have been issued for cash.

10

Eight of these shares are held by the eight Directors of the Trustee Company who hold one share each.

11

The main objects of the Trustee Company as set outin Clause 3 of its Memorandum of Association are the following: "3. (1) To manage the property and affairs of the Anglers' Co-operative Association. (2) To hold in trust for the benefit of the members from time to time of the said Association … the whole assets and undertaking of the Association. (3) To promote and protect the interests of anglers, companies, firms, clubs and associations … (4) To watch over, maintain and improve the condition, purity and volume of all rivers, lakes and other freshwater in Great Britain and Northern Ireland which now contains … fish. (13) To undertake or assist financially or otherwise in promoting or opposing litigation in any cases affecting the interests of anglers, fishery owners, and others interested in angling, the preservation, improvement or purity of fresh water fisheries or any inland water in Great Britain and to indemnify any members of the Association in respect of any action taken or to be taken or defended or to be defended or any liability incurred or to be incurred by him in any case in which the Association may consider it conducive to the interests of its members so to do, so far as may legally be done without infringing the law against maintenance and champerty. (19) To provide or procure for members of the Association such insurance or indemnities as may be required by the Association for the benefit of its members and generally to act as insurance agents or brokers for the Association and its members".

12

The Articles of Association of the Trustee Company include the following provisions as to Directors: "14. So far as may legally be practical and possible the Directors of the Company shall be the persons from time to timeconstituting the officers and committee of the Association elected in conformity with the rules thereof. 15. The qualification of a Director shall be that he is an elected officer or member of the Committee of the Association and the holder of one of the said shares of the Company".

13

A.C.A. has some 5,000 members, on the footing that each club members is counted as one, but there are between 700 and 800 club members, and if each member of each of these clubs is taken into account, the total number of persons associated with A.C.A., either directly as members of it themselves or indirectly as members of clubs who are members of it, is of the order of 250,000. During the period since its formation A.C.A. has conducted by means of pamphlets and periodicals and other forms of publicity an active campaign against the pollution of rivers by industrial effluents, sewage, and so forth, and has frequently lent its support to negotiations or litigation directed to the prevention of pollution in particular cases. There is nothing in the rules of A.C.A. to confine the giving of assistance of this sort to members of the Association, but I understand that, as might be expected, it has in practice been so confined.

14

A.C.A., in conjunction with the Trustee Company, has established a fighting fund in the form of guarantees given by supporters to the Trustee Company whereby the guarantors undertake to contribute up to a specified amount towards any sum which the Trustee Company may be called upon to pay under any guarantee or indemnity given by the Trustee Company in respect of the costs of an action to stop or prevent pollution. It appears that as a general rule the persons giving guarantees for the fighting fund would either be, or on the occasion of giving the guarantee become, members of A.C.A., but it is not clear that there have not been...

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    ...See also Giles v Thompson [1994] 1 A.C. 142; [1993] 2 W.L.R. 908; [1993] 3 All E.R. 321 at 328; Martell v Consett Iron Ltd [1955] Ch. 363; [1955] 2 W.L.R. 463, per Danckwerts J.; and P.H. Winfield, "The History of Maintenance and Champerty" (1919) 35 L.Q.R. 13 Otech [2006] SGCA 46......
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    ...5 and 6 of the Crimes Act 1900 (NSW), and Schedule 2, section 2(1) of the Civil Liability Act 2002 (NSW). 12Martell v Consett Iron Co Ltd [1955] Ch 363, 382 (Dankwerts J); Hill v Archbold [1967] 3 All ER 110; [1968] 1 QB 686, All ER 112; QB 694-695 (Lord Denning MR); Halliday v High Perform......

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