Oliver Alfred Sidney Cutts (Appellant (Plaintiff) v Albert Head and Another (Respondents

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date07 Dec 1983
Judgment citation (vLex)[1983] EWCA Civ J1207-1
Docket Number83/0483

[1983] EWCA Civ J1207-1






Royal Courts of Justice


Lord Justice Oliver

Lord Justice Fox


Oliver Alfred Sidney Cutts
Appellant (Plaintiff)
Albert Head


George Edward Head
Respondents (Defendants)

MR. MICHAEL MARK (instructed by Messrs. Collyer-Bristow, London Agents for Messrs. Lamport, Bassitt & Hiscock, Southampton) appeared for the Appellant Plaintiff.

MR. J. H. L. LECKIE (instructed by Messrs. Church Adams Tatham & Co., London Agents for Messrs. Wilsons, Salisbury, Wiltshire) appeared for the Respondents Defendants.


This appeal has taken a very unusual course. It is an appeal from an order of Foster J. made on the trial of the action on 22nd July 1981 and it first came before us on 12th October this year, when we delivered judgment allowing the appeal in part but dismissing it on the point with which we have been concerned today. The action was one which concerned the plaintiff's rights of access over the defendant's land to the plaintiff's fishery. He claimed certain declarations and injunctions and damages and there was a counterclaim for various negative declarations and for damages for trespass. After a very lengthy hearing the learned judge found generally in the plaintiff's favour, save that he also found that the defendants had two sustainable claims for damages. He therefore granted the plaintiff certain injunctions but he also inserted in the order certain declarations purporting to limit the plaintiff's enjoyment of his rights of access and a mandatory order upon him to carry out certain repairs. He also awarded the plaintiff damages in a sum which precisely equalled the damages awarded to the defendant so that, in this respect, the claim and the counterclaim cancelled out. The defendant did not appeal against this, but the plaintiff appealed against the imposition of the restrictions placed by the learned judge on the exercise of his rights and also against the order to carry out repairs. That was the substance of the appeal, although there were subsidiary points on costs.


Before the appeal came on, however, the defendant, no doubt on advice, conceded (and, I think, clearly rightly conceded) that the declarations and order appealed against were made without any jurisdiction and that the learned judge's order must therefore be varied accordingly. The result of that was that, but for the subsidiary questions on costs, there would have been nothing left in the appeal. The plaintiff, however, had obtained the learned judge's leave to appeal against the order made as regards the costs of the action, and the notice of appeal also challenged the correctness of the learned judge's order as regards the costs of a hearing before him when, as a result of their failure to agree on the form of the order to be made, counsel found it necessary to speak to the minutes. Accordingly, the appeal was brought on these two points. The parties were anxious to have the appeal heard without delay and, having been offered a convenient date upon which only two Lords Justices could be available, they agreed to the appeal being heard by a court so constituted, notwithstanding that the appeal was, in fact, a final appeal.


I do not think that anybody at that stage appreciated the far-reaching importance of the point which, in fact, has occupied most of the time taken in hearing the appeal and, indeed, Mr. Leckie had not originally, I think, thought that it would be necessary to refer the court to any authority on the point. With hindsight, it can be seen that it would have been preferable for the appeal to have been heard by a full court of three, but the general importance of the point at issue did not fully emerge until the second day of the hearing, by which time it was, for practical purposes, too late to interrupt the hearing and start the whole appeal again before a reconstituted court. We, accordingly, proceeded to hear the appeal, which we allowed as regards the costs of speaking to the minutes. No further question arises as to that.


The main part of the argument, however, was taken up with the other point at issue, namely the general costs of the action. The learned judge evidently took the view that, since the defendant had succeeded in establishing a claim to damages, albeit one which was equalled by the plaintiff's claim, the plaintiff, notwithstanding that he had in the main succeeded in the action, ought not to have the whole of his costs against the defendant. He accordingly ordered that the defendant pay to the plaintiff only half of the plaintiff's taxed costs of the action. That, of course, was an exercise of the judge's discretion which it would not ordinarily be easy for an appellant to challenge successfully, but the point at issue in the appeal—which I will elaborate more fully in a few moments—was whether he had exercised his discretion on a wrong principle inasmuch as he had declined to look at and take into consideration an offer of compromise made by the plaintiff before the trial, which was contained in a letter written in a form suggested by this court as being appropriate in matrimonial proceedings relating to financial provision. Mr. Leckie succeeded in persuading us that, whatever may be the appropriate procedure adopted without argument by this court in matrimonial proceedings, we were bound by the authority of a powerful decision of this court (consisting of Lord Esher, Lindley L.J. and Bowen L.J.) to hold that it was not one which was generally available and that the learned judge was, therefore, right in principle in declining to take the offer into account when determining the question of costs. We accordingly dismissed the appeal on this point.


After the hearing, however, and before the order was drawn up, two things emerged. In the first place, it emerged that the question in issue had in fact been very recently considered by the Vice-Chancellor, Sir Robert Megarry, in a case to which we had not been referred, but which plainly would have influenced our decision if it had been known to us. Let me make it quite clear that I am not in the least blaming counsel for not drawing this decision to our attention. They could not, any more than could the court, have known of it because it was not in fact reported until the issue of the All England Reports published on the Friday following our decision. The second thing that emerged, both as a result of counsel's enquiries and of discussion with some of our colleagues more familiar than we with practice in the Queen's Bench and Family Divisions, was that the use of the Family Division procedure, both in the Queen's Bench and Family Divisions (and, as it now appears, in the Chancery Division) was, in fact, very much more widespread than we had supposed and that it has been frequently sanctioned in this court in proceedings other than matrimonial proceedings although, apparently, without any challenge having been offered to it.


As a result of the publication of the report referred to, Mr. Mark was very properly prompted to draw it to the court's attention and to enquire whether the court would require further argument and, in the circumstances, we thought it right to direct that the order should not be drawn up until the matter had been restored and consideration given to the question of whether the judgments delivered on 12th October should be withdrawn. As a result, we have now had the benefit of a much fuller argument than we had when the matter was first before us, and our attention has been directed to a number of authorities not previously cited which, it is argued, whilst they do not directly bear on the point in issue, should cause us to re-examine the view which we previously formed that we were bound by authority to come to the conclusion that we did. Having heard that fuller argument, we thought it right to direct that the judgments which we delivered on 12th October should, so far as this point is concerned, be withdrawn in any event, and we accordingly reserved judgment.


I turn, therefore, to a rather more detailed consideration of the relevant facts.


The trial, which lasted some 33 days, took place in the summer of 1981 and, as already indicated, resulted in the plaintiff successfully establishing the rights of access which he claimed in the action. At an earlier stage of the matter, that is to say in July 1979, there had been a motion (which in fact came before my Lord, Fox L.J.) the result of which was a consent order under which undertakings were given on the part of the defendant not to obstruct the access claimed by the plaintiff and undertakings were given on the part of the plaintiff with regard to the use of the access—undertakings which limited that use in a manner more favourable to the defendant than he has, in the event, been found to be entitled to demand. On 15th December 1980, with the trial impending, the plaintiff's solicitors wrote to the defendant's solicitors a letter in which they suggested that the action be compromised on terms which they there set out. This letter was headed "without prejudice" and indicated that, after the failure of previous negotiations, their client had "now instructed that we write without prejudice with further proposals".


It then set out a series of proposals for the settlement of the action and those proposals undoubtedly would in fact have been more beneficial to the defendant than the order which was finally made on the determination of the action.


In particular, it suggested that the access as limited by the undertakings in the consent order should continue, that the plaintiff...

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