Seldon v Davidson

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE WILLMER,LORD JUSTICE EDMUND DAVIES
Judgment Date02 May 1968
Judgment citation (vLex)[1968] EWCA Civ J0502-2
Date02 May 1968
Docket Number1966. S. No. 261.

[1968] EWCA Civ J0502-2

In The Supreme Court of Judicature

Court of Appeal

Civil Division

Appeal from: Judge Lawson Campbell Colchester County Court 26.3.1968.

Revised

Before:

Lord Justice Willmer

and

Lord Justice Edmund Davies

1966. S. No. 261.
Between:
Doris Ellen Seldon
Plaintiff
and
Goerge Shand Davidson
Defendant

Mr. RAYMOND A.W. SEARS (Instructed by Messrs Oswald, Hickson, Collier & Co., Agents for Mr. Desmond Pye, Clacton-on-Sea) appeared on behalf of the Appellant (Defendant).

Mr CHRISTOPHER W.S. LUBBOCK (instructed by Messrs Thompson, Smith & Puxon, Colchester) appeared on behalf of the Respondent (Plaintiff)

LORD JUSTICE WILLMER
1

This is an appeal from a ruling given by His Honour Judge Lawson Campbell sitting at Colchester County Court on the 26th March 1968 in an action brought by the plaintiff for the return of a sue of money paid by the plaintiff to the defendant. The facts lie within a very small compass, and can be briefly stated.

2

The defendant had apparently been employed as chauffeur and handyman by the plaintiff. In or about February or March 1968, he was desirous of purchasing a house. For that purpose the plaintiff paid to him by way of two cheques, drawn respectively on the 16th February and the 16th March 1966 a sum of money amounting to £1,630. With the aid of that, we are informed, the defendant in fact bought the house. Later the parties appear to have fallen out, and the defendant was dismissed from his employment. In those circumstancesthe plaintiff sought to get back the money which she had paid to the defendant. Upon the money not being forthcoming, a specially endorsed writ was issued in the High Court. Appearance was entered but no defence was delivered, and in due course the plaintiff recovered judgment in default of defence. It appeared, however, that the absence of defence was due to some mistake on the part of the solicitor. Application was therefore made to act aside the judgment obtained by default, and an order in those terms was obtained. By agreement between the parties the action was remitted to the Colchester County Court. In due course a defence was delivered, and subsequently amended. In its amended form it admitted the receipt of the two sums of money amounting to £1,630, but alleged that the payments made by the plaintiff were intended as a gift. Alternatively it was alleged that, if the payments were intended as a loan, then the loan was not repayable at the date of the issue of the writ.

3

On those pleadings the case went to trial, and on the 26th March of this year it was duly called on. At that point a submission was put before the learned judge by counsel for the plaintiff that, having regard to the admission of the receipt of these two cheques, the legal burden was on the defendant to prove one or other of the defences, that is either that there was a gift or, if a loan, it was not repayable at the date of the issue of the writ. The learned judge ruled in favour of that submission. Application was then made by counsel for the defendant to adjourn the trial of the case in order that that ruling might be tested in this court. The matter, therefore, is sought to be brought before this court as a preliminary point.

4

Now that the case has reached this court, we are faced with a further preliminary point in objection to the appeal. It is said that there is no right of appeal against a ruling made in such circumstances as those. We have been referred in that connection to section 108 of the County Courts Act 1959, the material part of which provides as follows: "Subject to the following provisions ofthis Part of this Act, if any party to any proceedings in a county court is dissatisfied with the determination or direction of the judge in point of law or upon the admission or rejection of any evidence, the party aggrieved by the judgment, direction or decision or order of the judge may appeal there from to the Court of Appeal". It is said that, this being a mere ruling in the course of the trial, the matter does not come within any of the words used in that section, and consequently no appeal lies.

5

I for my part find that question of some difficulty. I think there is considerable substance in the objection, but I do not propose to express any concluded opinion thereon. I am prepared to assume for the purpose of argument that an appeal against such a ruling does lie. I am happy to mates that assumption because I am by no means satisfied that, if an appeal does lie, it is one which is entitled to succeed. In other words, I am not prepared to say that the learned judge gave a wrong ruling when he decided, as ha did, that it was for the defendant to begin, the burden of proof being upon him to make good the assertion put forward in his defence.

6

The way I look at it is this. Payment of the money having been admitted, prima facts that payment imported an obligation to repay in the absence of any circumstances tending to show anything in the nature of a presumption of advancement. This is not a case of fat bar and child, or husband and wife, or any other such bleed relationship which could have given rise to a presumption of advancement. Mr Sears, who has argued the case in support of the appeal, was constrained to admit that the house, which had been bought with the aid...

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