National Benzole Company Ltd v Gooch
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE UPJOHN,LORD JUSTICE DIPLOCK |
| Judgment Date | 24 October 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1024-3 |
| Court | Court of Appeal |
| Date | 24 October 1961 |
[1961] EWCA Civ J1024-3
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Plowman - in chambers)
Lord Justice Sellers
Lord Justice Upjohn and
Lord Justice Diplock
Mr. IAN PERCIVAL (instructed by Messrs. Constant & Constant) appeared on behalf of the Applicant (Defendant).
Mr. ALAN CAMPBELL (instructed by Messrs. Bird & Bird) appeared on behalf of the Respondents (Plaintiffs).
: By a writ dated 19th July, 1961, the plaintiffs claimed against the defendant on a guarantee the sum of £11,562. 10s. Od. On the 30th August they applied for leave to enter judgment for that amount and were successful, being given leave by Master Lawrence. The defendant appealed on the 5th September, 1961, to Mr. Justice Plowman, who dismissed the defendant's appeal against the decision of Master Lawrence, thereby leaving the plaintiffs at liberty to sign final judgment for the amount claimed. On the 18th September the defendant gave notice of appeal from that decision, setting out the grounds on which he relied. That was set down for hearing on the 22nd September. On the 3rd October the defendant's solicitors drew up this document: "We Messrs. Pettitt & Westlake do hereby certify that the appellant is sui juris and we request that the appeal in this action set down to be heard before the Court of Appeal be dismissed and struck out of the list". That being typed, there was then added in writing in ink, "with no order as to costs". That was dated 3rd October, 1961, and signed by the appellant's solicitors. There was endorsed upon that document "We consent. Bird & Bird, solicitors for the plaintiffs who are sui juris".
It would appear on the face of that document that the plaintiffs' solicitors were prepared to abandon their claim for costs on the dismissal of the action in order to get finality in this appeal. That document, according to the usual practice, came before me as president of this Court and was initialled by me on the 4th October. The agreement (for such it became) was not only for the appeal in the action to be dismissed but to be struck out of the list. It was struck out, and was removed from the list before there occurred the next matters to which I must make some reference.
By a notice dated 17th October the defendant gave notice that he would move this court on the 23rd October (which was yesterday) for various orders, the first being "That no order or orders be drawn up or entered in this appeal until further order of the Court of Appeal". The matter was fought before us on this motion to direct that no order should be drawn up with a view to this court giving authority to the defendant as an appellant to proceed with his appeal notwithstanding what had taken place before. It appears that no order was drawn up. It was not contemplated that it would be, because the agreement was that the appeal should be "dismissed and struck out of the list", as indeed it was, and there would be no occasion, apart from complete finality to these proceedings, to draw up an order, no taxation being contemplated or being even possible.
The application was supported by learned counsel moving for this order by observations of Lord Justice Tucker in the Court of Appeal in the case of James Lamont & Co. Limited. v. Hyland Limited., reported in 1950 1 King's Bench page 585, at page 587, where the learned Lord Justice said: "I think it is clear that, until an order has been drawn up and entered, the appeal is not dismissed. The signing of the consent and the initialling by the president of the court is all preliminary machinery leading up to the drawing up and entry of the order. It may be that very often no order is drawn up: frequently no orders are drawn up unless the taxation of costs is required. But if an order is not drawn up and entered, a respondent may find himself in a difficulty. None the less, in the present case, the consent having been initialled by the president of the court, the matter is on the same footing as if an application had been made in open court and dealt with. The procedure of initialling these consents is merely for the purpose of saving time and expense, and it affords exactly the same authority to the officials who draw up the proper order as an order made in court. Accordingly, I think that, where this court has, under that procedure, in effect made an order which has not been drawn up, it has power to refuse to allow the matter to be proceeded with by a fresh notice of appeal or by the party seeking to rely on the original notice of appeal. I think that we are masters of the situation…" Notwithstanding the submission of learned counsel for the respondent that in this case the circumstances are different from the case of Lamont & Co. v. Hyland Limited. - and indeed also from the earlier authority to which reference was made by Lord justice Tucker in that judgment, In re Samuel, 1945 Chancery at page 364 - I think that what was there said by this court does cover this case, that there has been no order drawn up and therefore this matter is open for consideration before this court, which is not deprived of jurisdiction.
But having said that, the two cases to which I have just referred lend no support to the appellant's motion. In those two cases (and I do not refer to them further) the situation was different because there was nothing in the nature of an agreement; it was in both cases an application that the action should be dismissed, in one I think expressly...
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Re Barrell Enterprises
... ... Hyland (1950) 1 King's Bench page 585 'and National Benzola Co. Ltd. v. Gooch (1961) 1 weekly Law Keports, page 1U89 are- ... ...
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