Morrison Rose & Partners v Hillman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOLROYD PEARCE,LORD JUSTICE WILLMER,LORD JUSTICE PEARSON |
| Judgment Date | 07 June 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0607-1 |
| Court | Court of Appeal |
| Date | 07 June 1961 |
[1961] EWCA Civ J0607-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Holroyd Pearce,
Lord Justice Willmer and
Lord Justice Pearson.
MR LEONARD CAPLAN, (Q.C., and MR T.P. SLOT (instructed by Messrs Hewitt Woollacott & Chown) appeared for the Plaintiffs (Respondents).
MR E.S. FAY, Q.C., and MR A. BULGER (instructed by Messrs Howard Kennedy & Co.) appeared for the Defendant (Appellant).
: This case has been very ably and carefully argued on both sides. The Defendant appeals against the judgment of the Official Referee, His Honour Sir Brett Cloutman in favour of the Plaintiffs for £5,044 in respect of the Plaintiffs' fees as architects.
The Defendant is an estate developer whose business consists of getting options on land and erecting buildings on it, if he can obtain the necessary finance. He approached the Plaintiffs and orally agreed with them that they should act as his architects in his various projects on certain special terms. They did a large amount of work for him on many schemes, of which some bore fruit and some did not.
This case turns on his liability, if any, to them for abortive architectural work done in respect of anticipated land development that never in fact developed. Unless payment for such work was excluded by a special term in the oral agreement, that agreement entitles them to the R.I.B.A. scale fees on work abandoned. The Defendant asserts that it was expressly agreed that the Plaintiffs should receive no fees at all for abortive work.
While the present case was pending a previous case (which I will call the first case) between the same parties was heard and decided by the same Official Referee, In respect of fees for work abandoned in connection with some other project. The identical agreement which decides the mainissue in this case was also the deciding factor in the first case. That case lasted four weeks, and we are told that eight days were devoted to an intensive examination of the oral and documentary evidence bearing on the terms of the oral agreement.
The Official Referee decided in the first case that the Plaintiffs were entitled under the oral agreement to charge scale fees in respect of work abandoned, and gave judgment for the appropriate amount.
The Plaintiffs then amended their reply in the present case to raise an estoppel on the ground that the issue as 'to the Plaintiffs' right under the agreement to charge scale fees for work abandoned was res judicata, The Defendant contended that no estoppel could be raised by the judgment in the first case, since it was given after the issue of the Writ in the present case. It was conceded that had it been given before the Writ was issued it would have created a binding estoppel in accordance with the general principles of estoppel by res judicata, It was also conceded that there was no fresh evidence available, and that if he heard evidence it would be the same as that on which he based the first decision…
The learned Official Referee, after careful consideration, decided against the Defendant on this point. He refused to hear any evidence as to the terms of the oral agreement, and decided the matter solely on the basis of his judgment in the first case, which he considered to be conclusive.
Mr Fay for the Defendant relies on two arguments. First, he argues that following the judgment of Mr Justice Phillimore in ( The Delta 1 Probate Division, 393) there is a rule that no estoppel can arise from a judgment in another case given after the issue of the writ. There is no authority in this Court on the point. Secondly, he argues that estoppel by res judicata must be pleaded in order to be effective, and that the rules of pleading do not enable the Plaintiffs to plead an estoppel that arises after action brought.
In ( The Delta 1 Probate Division, 393) the owners of the ship "Delta" sued abroad in respect of a collision between two ships and obtained judgment against the owners of the other ship. Before that judgment a writ had been issued against the owners of "The Delta" in England. The owners of the "Delta" sought to say that a foreign judgment delivered while the English suit was pending created an estoppel in their favour, but the Court refused to accept the estoppel.
The learned Judge said this at page 404: … I am of opinion this defence must fall, for two reasons; the first is that at the time when the suit against "The Delta" was begun there was confessedly no res judicata, there was only a lis alibi pendens; and if the owners of "The Delta" had wished to escape from having two suits against them for the same matter brought to a hearing, they should have put the owners of the "Erminia Foscolo" to their election, compelling them to abandon one or the other of the suits, according to the rule laid down by me in "The Mali Ivo", and quite recently applied in the "Catterina Chiazzare." As regards the suit against the "Erminia Foscolo", that was brought by the owners of "The Delta" while the foreign lis was pending; they cannot be heard, therefore, to object that this lis is a bar to a decision on the merits of this suit. The second reason is that the foreign judgments not having been given on the merits of the case, but on matters of form only, cannot be set up as a bar to a decision on the merits.'
I understand the learned Judge to be saying that the owners of "The Delta" had an opportunity when both actions were pending of pleading a lisalibipendens and putting their opponents to an election. Instead of doing so, they chose to lie by until they had secured a victory and then tried to rest on that and avoid a second trial. They must be taken to waive their right to fight one action only, and they ought not to be heard to rely on estoppel. As Lord Coke said: "An estoppel against an estoppel setteth the matter at large."
I cannot accept that case as authority for the general proposition that a judgment in another case could not act as an estoppel merely because it was given after the issue of the writ in the second case. In ( Houston v. The Marquis of Sligo 29 Chancery Division, 448) the headnote reads, inter alia; "Whether a judgment obtained in one action before the trial of another can operate by way of estoppel as res judicata, unless the judgment was obtained before the issue of the writ in the second action, Quaere." The passage in the judgment from which that part of...
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Preliminary Sections
...Morison v. London and Westminster Bank Ltd. (1914) 3 K.B. 356; 83 L.J.K.B. 1202; 30 T.L.R. 481. 163 Morrison Rose & Partners v. Hillman [1961] 2 Q.B. 266, 277. 291 CASES REFERRED TO IN 1967 North Staffordshire Railway Co. v. Edge (1920) A.C. 254, 263. 153 Nwaneri v. Oriuwa (1959) 4 F.S.C. 1......
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Cases referred to in 1967
...Morison v. London and Westminster Bank Ltd. (1914) 3 K.B. 356; 83 L.J.K.B. 1202; 30 T.L.R. 481. 163 Morrison Rose & Partners v. Hillman [1961] 2 Q.B. 266, 277. 291 CASES REFERRED TO IN 1967 North Staffordshire Railway Co. v. Edge (1920) A.C. 254, 263. 153 Nwaneri v. Oriuwa (1959) 4 F.S.C. 1......
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Litigation
...(1933) 50 TLR 1 at 2. 1369 Lockyer v Freeman (1877) 2 App Cas 519 at 530, per Lord Blackburn; Morrison Rose & Partners v Hillman [1961] 2 QB 266 at 276, per Holroyd Pearce LJ; Mills v Cooper [1967] 2 QB 459 at 469, per Diplock LJ; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [34......