Osenton (Charles) & Company v Johnston

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeThe Lord Chancellor,Viscount Maugham,Lord Wright,Lord Porter
Judgment Date09 May 1941
Judgment citation (vLex)[1941] UKHL J0509-3
Date09 May 1941

[1941] UKHL J0509-3

House of Lords

Lord Chancellor

Viscount Maugham

Lord Wright

Lord Porter

Charles Osenton and Company

After hearing Counsel, as well on Thursday the 6th, as on Friday the 7th, days of March last, upon the Petition and Appeal of Charles Osenton and Company, of High Street, Guildford, in the County of Surrey, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 15th of April 1940, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioned might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Arthur Brooke Johnston, lodged in answer to the said Appeal; 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 His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 15th day of April 1940, complained of in the said Appeal, be, and the same is hereby Reversed: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned 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 King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

The Lord Chancellor

My Lords,


The Appellants are a firm carrying on business at Guildford as estate agents and surveyors, who are being sued by the Respondent for breach of contract and for negligence in their professional capacity. By his Statement of Claim, dated 14th November, 1939, the Respondent alleges that he employed the Appellants to prepare a scheme for the lay-out of certain properties, which the Respondent had acquired with a view to their development as a housing estate, and that the Appellants were negligent in that they failed to acquaint themselves with the levels of the property preliminary to the working out of a proper system of drainage, advised a system of cesspool drainage without considering whether this could be avoided by means of pumping sewage into a public sewer, provided for laying certain sewers which either could not be laid at all or could only be laid with disadvantage to the Respondent, and did not plan so as to secure on the area the greatest number of houses permitted by the Housing Acts, with various cognate complaints. The Defence, dated February 2nd, 1940, put these allegations in issue, and thereupon the Respondent applied to the Master in Chambers for the transfer of the trial of the cause to an Official Referee. The Appellants resisted this application, but Master Ball thought it right to make the Order, which was confirmed on appeal by the Judge in Chambers, Mr. Justice Tucker. The learned Judge gave leave to appeal, and on April 15th the matter came before the Court of Appeal, consisting of Lord Justice Slesser, Lord Justice Clauson and Mr. Justice Singleton. Lord Justice Slesser and Mr. Justice Singleton were for dismissing the Appeal, but Lord Justice Clauson in a dissenting Judgment, to which I must make further reference, considered that the Order of Transfer to the Official Referee should not have been made. The Court of Appeal, therefore, by a majority dismissed the Appellants' appeal, at the same time giving leave to appeal to this House.


The question turns on the interpretation and proper application of paragraph (B) of Section 89 of the Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16 Geo. V. Ch. 49). That section is in the following terms:—

"In any cause or matter, other than a criminal proceeding by the Crown—

(A) If all the parties interested who are not under disability consent; or

(B) If the cause or matter requires any prolonged examination of documents or any scientific or local investigation which cannot in the opinion of the Court or a Judge conveniently be made before a jury or conducted by the Court through its other ordinary officers; or

(C) If the question in dispute consists wholly or in part of matters of account;

the Court or a Judge may at any time order the whole cause or matter, or any question or issue of fact arising therein to be tried before a special referee or arbitrator respectively agreed on by the parties, or before an official referee or officer of the Court."


Under this section it is plain that two matters may arise. The first is the ambit of the jurisdiction which it confers upon the master or judge to make an Order on an opposed application transferring the trial to an Official Referee. The second is the question of the considerations to be borne in mind, when jurisdiction to make the Order exists, before the Master or Judge decides to exercise his discretion by making the Order.


The Appellants contend that the present action is one to which Section 89 has no application at all. They further contend that if there is any jurisdiction in the present case to make the Order of Transfer, the discretion to make it has not been properly exercised and that the Order on that ground ought not to be made. These two contentions must be examined in turn.


First, as to the scope of paragraph (B). Several questions of interpretation arising under the paragraph were discussed in the course of the hearing before this House, and, though it is not necessary to form a final conclusion on all of them in order to decide this Appeal, it is, I think, convenient, as we are dealing with a rule of procedure which is so frequently brought into play, to mention each of the points raised.


( a) Does the relative clause "which cannot in the opinion of the Court or a judge conveniently be made" etc. qualify both of the alternatives mentioned in paragraph (B), or does it only qualify the second of them, viz. "any scientific or local investigation"? In other words, does jurisdiction to make the Order arise if the cause or matter requires "any prolonged examination of documents" without qualification, or is this test satisfied only when such prolonged examination cannot conveniently be made by the alternative methods mentioned? Having regard to the earlier history of this provision, and in particular to the contrast between the language of the repealed Section 57 of the Supreme Court of Judicature Act, 1873 (36 & 37 Vic. Ch. 66), and of the existing Section 89 of the Act of 1925, I have formed the opinion that the relative clause qualifies both limbs of the paragraph. Section 57 of the Act of 1873 authorised transfer to an Official Referee in any, "cause or matter requiring any prolonged examination of documents or accounts, or any scientific or local investigation which cannot, in the opinion of the Court or a judge, conveniently be made before a jury, or conducted by the Court through its other ordinary officers". The Act of 1925 dealt separately with the case in which the dispute consists wholly or in part of matters of account and put this case in a separate paragraph (C), without adding the test of convenience. But it left the "prolonged examination of documents" to be grouped in the same paragraph with "any scientific or local investigation", and it follows, I think, that the requirement of a prolonged examination of documents is not enough to give jurisdiction, unless the test of convenience is also satisfied.


( b) What is the meaning of the final words in paragraph (B)—"through its other ordinary officers"? It is to be observed that the paragraph does not in express terms raise the question whether the matters to be examined or investigated could conveniently be dealt with by a judge without a jury. It is, I think, clear that the "other officers" of the Court are not the High Court Judges themselves; the reference must be to masters or registrars and similar functionaries. But even though trial by a judge without a jury is not expressly referred to in paragraph (B), it is plain that in exercising the discretion conferred by that paragraph, the master or judge must consider whether hearing by a judge without a jury is not the proper course. One can imagine a case in which the probable length of the enquiry would be so great that if the case is put in the Non-Jury List, it would be unlikely to secure the continuous attention of a judge, who would in due course be going on circuit, or perhaps would so block the disposal of other causes as to embarrass the due administration of justice. In considering whether to transfer a case to the Official Referee where all parties do not consent, the master or judge must always have fully in mind, and give due weight to, the alternative of trial by a judge alone.


( c) What do the words "scientific or local investigation" mean? In many cases, the need for local trial is appropriately met by fixing the place of trial at Assizes, but a very long investigation is, for practical reasons, not suited to this treatment, whereas an Official Referee can establish himself in the part of the country which is most convenient for the hearing, and carry the case to its conclusion, if necessary, even though it lasts a long time. And there may be other reasons requiring a prolonged local investigation which would justify an Order of Transfer, e.g. if in a long case a large number of witnesses from the same locality is likely to be called. As for "scientific investigation", I do not consider that a sufficient reason for transfer would be found merely because technical questions are involved. A judge is just...

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