Roberts Petroleum Ltd v Bernard Kenny Ltd

JurisdictionUK Non-devolved
CourtHouse of Lords
JudgeLord Diplock,Lord Edmund-Davies,Lord Keith of Kinkel,Lord Roskill,Lord Brightman
Judgment Date10 February 1983
Judgment citation (vLex)[1983] UKHL J0210-1
Date10 February 1983

[1983] UKHL J0210-1

House of Lords

Lord Diplock

Lord Edmund-Davies

Lord Keith of Kinkel

Lord Roskill

Lord Brightman

Roberts Petroleum Limited
(Respondents)
and
Bernard Kenny Limited
(Appellants)
Lord Diplock

My Lords,

1

My noble and learned friend, Lord Brightman, in his speech says all that need be said about the facts that give rise to this appeal and the law applicable to them. I agree with the conclusion that he reaches and the reasoning by which he supports it and I, too, would allow the appeal and restore the judgment of Bristow J.

2

I do desire, however, to comment upon the use sought to be made both in this House and in the Court of Appeal of previous judgments of that court which do not appear in any series of published law reports. This is a growing practice and one which, in my view, ought to be discouraged.

3

Transcripts of the shorthand notes of oral judgments delivered since April 1951 by members of the Court of Appeal, nearly all extempore, have been preserved at the Royal Courts of Justice, formerly in the Bar Library but since 1978 in the Supreme Court library. For much of this period this course has been followed as respects all judgments of the civil division of the Court of Appeal, though recently some degree of selectivity has been adopted as to judgments to be indexed and incorporated in the bound volumes. Unreported judgments which have been delivered since the beginning of 1980 are now also included in the computerised data base known as Lexis and this has facilitated reference to them. Two such transcripts are referred to in the judgment of the Court of Appeal in the instant case. One of these was a case, Hudson's Concrete Products Ltd. v. D. B. Evans (Bilston) Ltd. to which my noble and learned friend refers, which had been the subject of a note in the Solicitors' Journal. The other had not been noted in any professional journal, nor had either of the two additional transcripts to which your Lordships were referred at the hearing in this House. For my part, I gained no assistance from perusal of any of these transcripts. None of them laid down a relevant principle of law that was not to be found in reported cases; the only result of referring to the transcripts was that the length of the hearing was extended unnecessarily.

4

This is not surprising. In a judgment, particularly one that has not been reduced into writing before delivery, a judge, whether at first instance or upon appeal, has his mind concentrated upon the particular facts of the case before him and the course which the oral argument has taken. This may have involved agreement or concessions, tacit or explicit, as to the applicable law, made by counsel for the litigating parties in what they conceived to be the interests of their respective clients in obtaining a favourable outcome of the particular case.

5

The primary duty of the Court of Appeal on an appeal in any case is to determine the matter actually in dispute between the parties. Such propositions of law as members of the court find necessary to state and previous authorities to which they find it convenient to refer in order to justify the disposition of the actual proceedings before them will be tailored to the facts of the particular case. Accordingly propositions of law may well be stated in terms either more general or more specific than would have been used if he who gave the judgment had had in mind somewhat different facts, or had heard a legal argument more expansive than had been necessary in order to determine the particular appeal. Even when making successive revisions of drafts of my own written speeches for delivery upon appeals to this House, which usually involve principles of law of wider application than the particular case under appeal, I often find it necessary to continue to introduce subordinate clauses supplementing, or qualifying the simpler, and stylistically preferable, wording in which statements of law have been expressed in earlier drafts.

6

There are two classes of printed law reports: the two weekly series of general law reports (a) the Weekly Law Reports of the Incorporated Council of Law Reporting, of which the more important, contained in Parts 2 and 3, are later reproduced in the Law Reports proper, together with a summary of the arguments of counsel, and (b) the All England Law Reports which report much the same cases as the former series; these do not err on the side of over-selectivity. Then there are the various series of specialised law reports which seem to have proliferated in the course of the last few decades; these may be useful in helping lawyers practising in specialised fields to predict the likely outcome of the particular case in which they are advising or instituting proceedings, by seeing how previous cases in which the facts were in various respects analogous were actually decided; but these specialised reports contain only a small minority of leading judgments in which some new principle of law of general application in the specialised field of law is authoritatively propounded, as distinct from some previously accepted principle being applied to the facts of a particular case. If a civil judgment of the Court of Appeal (which has a heavy case load and sits concurrently in several civil divisions) has not found its way into the generalised series of law reports or even into one of the specialised series, it is most unlikely to be of any assistance to your Lordships on an appeal which is sufficiently important to reach this House.

7

My Lords, in my opinion, the time has come when your Lordships should adopt the practice of declining to allow transcripts of unreported judgments of the civil division of the Court of Appeal to be cited upon the hearing of appeals to this House unless leave is given to do so; and that such leave should only be granted upon counsel's giving an assurance that the transcript contains a statement of some principle of law, relevant to an issue in the appeal to this House, that is binding upon the Court of Appeal and of which the substance, as distinct from the mere choice of phraseology, is not to be found in any judgment of that court that has appeared on one of the generalised or specialised series of reports.

Lord Edmund-Davies

My Lords,

8

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Brightman. For the reasons he has developed, with which I am in respectful agreement, I would make the orders indicated by him and allow the appeal.

9

I likewise concur in the views expressed by my noble and learned friend, Lord Diplock, regarding the desirability of curbing in the manner he suggests the modern practice of citing in your Lordships' House an inordinate number of transcripts of unreported decisions of the Court of Appeal.

Lord Keith of Kinkel

My Lords,

10

I have had the benefit of reading in draft the speech to be delivered by my noble and learned friend Lord Brightman. I agree with it, and for the reasons he gives I too would allow the appeal.

11

I have also to record my respectful agreement with the observation of my noble and learned friend, Lord Diplock, upon the use of unreported decisions of the Court of Appeal.

Lord Roskill

My Lords,

12

I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Diplock and Lord Brightman. As regards this appeal I agree with all that my noble and learned friend Lord Brightman has said and with the conclusion which he reaches that this appeal should be allowed and the judgment of Bristow J. restored.

13

As regards the use of unreported decisions of the Court of Appeal, I entirely agree with the speech of my noble and learned friend Lord Diplock and I respectfully endorse in particular that which he has said in the last paragraph of that speech.

Lord Brightman

My Lords,

14

The question which arises on this appeal can be shortly stated. A judgment creditor of a company obtains a charging order nisi over the land of the debtor company and the appointment of a receiver. The company thereafter convenes a meeting of its shareholders on short notice and resolves upon voluntary liquidation. In these circumstances, can the court in the proper exercise of its discretion make the order absolute? The High Court judge thought not. The Court of Appeal thought yes, reaching the same conclusion as the District Registrar before whom the matter had first come.

15

The question, as I have stated it, has not been before the court for decision in any reported case. Indeed, there is little reported authority on problems which can arise in this area of the law. The question is of importance to the commercial community. If the respondent is right, and an intervening voluntary liquidation does not inhibit the making absolute of a prior order nisi, there is every incentive for judgment creditors to issue execution at the last moment of an insolvent company's life in order to secure their position and gain a last minute advantage over less agile or more patient creditors. If the appellant is right, then the interval between the order nisi and the consideration of an order absolute allows time for a voluntary winding-up resolution or the presentation of a winding-up petition, with the consequent possibility of preserving the position of the unsecured creditors as a whole.

16

The power of the High Court to grant a judgment creditor a charging order over the land of the judgment debtor was at the relevant time contained in section 35 of the Administration of Justice Act 1956, and was regulated by order 50 of the Supreme Court Rules. Prior to 1 January 1957, and indeed dating back to the Judgments Act 1838, a different system prevailed to which it is unnecessary to refer. Section 35 has now been replaced by the Charging Orders Act 1979 and there is also a new version of Order 50. This appeal is concerned...

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