Onassis and Calogeropoulos v Vergottis (Artemision II., Christina.)

JurisdictionUK Non-devolved
JudgeViscount Dilhorne,Lord Morris of Borth-y-Gest,Lord Guest,Lord Pearce,Lord Wilberforce
Judgment Date31 October 1968
Judgment citation (vLex)[1968] UKHL J1031-2
CourtHouse of Lords
Date31 October 1968
Onassis and Another (Feme Sole)
and
Vergottis et è Contra

[1968] UKHL J1031-2

Viscount Dilhorne

Lord Morris of Borth-y-Gest

Lord Guest

Lord Pearce

Lord Wilberforce

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Onassis and another (Feme Sole) against Vergottis, et è contra, that the Committee had heard Counsel, as well on Monday the 8th, as on Tuesday the 9th, Wednesday the 10th, Thursday the 11th, Monday the 15th, Tuesday the 16th, Wednesday the 17th, Thursday the 18th and Monday the 22d, days of July last, upon the Petition and Appeal of Aristotle Socrates Onassis, of 17, Avenue d'Ostende, Monte Carlo, in the Principality of Monaco, and of Maria Calogeropoulos, of 36 Avenue George Mandel, Paris, in the Republic of France, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 23d of January 1968, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Petition and Cross Appeal of Panaghis Vergottis, of the Ritz Hotel, Piccadilly, in the County of Greater London, W.1, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 23d of January 1968, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Cross Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Panaghis Vergottis; and also upon the Case of Aristotle Socrates Onassis and Maria Calogeropoulos (Feme Sole), lodged in the said Original and Cross Appeals; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of Her Majesty's Court of Appeal, of the 23d day of January 1968, complained of in the said Original and Cross Appeals, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Roskill of the 28th day of April 1967, thereby Set Aside, be, and the same is hereby, Restored:

And it is further Ordered, That the Respondent in the Original Appeal do pay, or cause to be paid, to the said Appellants in the Original Appeal the Costs incurred by them in the Court of Appeal and also the Costs incurred by them in respect of the said Original Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the said Cross Appeal be, and the same is hereby, Dismissed this House: And it is further Ordered, That the Appellant in the Cross Appeal do pay, or cause to be paid, to the said Respondents in the Cross Appeal the Costs incurred by them in respect of the said Cross Appeal to this House, the amount of such costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Viscount Dilhorne

My Lords,

1

On this action Mr. Aristotle Onassis and Madame Maria Calogeropoulos, known as Madame Callas, sought specific performance of an agreement which they alleged had been entered into between them and Mr. Vergottis under which in return for the payment of £60,000 by Madame Callas, Mr. Vergottis agreed that she would be entitled to receive 25 bearer shares in a company called Overseas Bulkcarriers Corporation. In the alternative the Plaintiffs alleged that the agreement had been varied and that the agreement so varied had been that the £60,000 paid by Madame Callas should be treated as a loan to Overseas Bulkcarriers Corporation at 6 1/2 per cent with an option to call for the delivery to her of 25 shares in that corporation exercisable within two years. The Plaintiffs claimed specific performance of the agreement so varied.

2

Mr. Vergottis denied that there had ever been any such agreement. He said that the £60,000 paid by Madame Callas had simply been a loan to the company at 6½ per cent. and that she had never had any right or option to have any shares in the company.

3

The action was tried by Roskill J., who after a ten-day hearing found in favour of the Plaintiffs and made an order that Mr. Vergottis should transfer or cause to be transferred to Madame Callas 25 shares in the company.

4

From this decision Mr. Vergottis successfully appealed to the Court of Appeal (Lord Denning M.R., Salmon and Edmund Davies L.JJ). A new trial was ordered.

5

Mr. Onassis and Madame Callas now appeal with the leave of the House.

6

Counsel were unable to cite any reported case in which an order for a new trial had been made on an appeal from a High Court judge sitting without a jury but it was not disputed that the Court of Appeal had jurisdiction to make such an order.

7

Order 59 rule 11 (2) of the Rules of the Supreme Court reads as follows:—

"(2) A new trial shall not be ordered on the ground of misdirection, or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned."

8

The Court of Appeal was satisfied that a substantial wrong or miscarriage had been occasioned by Roskill J. misdirecting himself and failing to take account of factors in Mr. Vergottis' favour.

9

Usually the power to order a new trial is only exercised where a trial has been with a jury and the usual consequence of a successful appeal from a judge sitting alone is that the judgment is reversed or altered. It must, however, be recognised that in some cases, and it is said that this is one, although there may have been error in the course of the trial or in the judgment sufficient to give rise to a substantial wrong or miscarriage, it is not possible to do justice by reversing or amending the judgment. In such a case the only possible order is an order for a new trial (see Jones v. Hough (1879) 5 Exch. D. 115 per Cotton L.J. at page 125).

10

The observations made in S.S. Hontestroom v. S.S. Sagaporack [1927] A.C. 37 and in Watt or Thomas v. Thomas [1947] A.C. 485, where the question at issue was whether the judgment of the trial judge should be reversed, as to the matters to be borne in mind are in my opinion equally applicable where the question is whether or not a new trial should be ordered on an appeal in a case tried without a jury.

11

In the former case Lord Sumner, with whose opinion Viscount Dunedin and Lord Carson agreed, said at page 47:—

"What then is the real effect on the hearing in a Court of Appeal of the fact that the trial judge saw and heard the witnesses? I think it has been somewhat lost sight of. Of course, there is jurisdiction to retry the case on the shorthand note, including in such retrial the appreciation of the relative values of the witnesses, for the appeal is made a rehearing by rules which have the force of statute: Order LXVIII r. 1" (now Order 59) "It is not, however, a mere matter of discretion to remember and take account of this fact; it is a matter of justice and of judicial obligation. None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone."

12

and at page 48:—

"James L.J. thus laid down the practice in the Sir Robert Peel (1880) 4 Asp. M.L.C. 321, 322:

"The Court will not depart from the rule it has laid down that it will not overrule the decision of the Court below on a question of fact in which the judge has had the advantage of seeing the witnesses and observing their demeanour, unless they find some governing fact which in relation to others has created a wrong impression".".

13

In the latter case Lord Simon said at page 486:

"If the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact. …"

14

He also said that he agreed with Lord President Clyde in Dunn v. Dunn's Trustees 1930 S.C. 131 that the true rule was that a court of appeal should:—

"attach the greatest weight to the opinion of the judge who saw the witnesses and heard their evidence"

15

and consequently should not...

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1 firm's commentaries
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    ...can be of very great assistance to a Judge in ascertaining the truth." Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 identified a number of questions that judges may ask themselves when considering whether a witness is telling the truth. Credibility is not j......
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