Tito v Waddell
| Jurisdiction | England & Wales |
| Date | 1975 |
| Year | 1975 |
| Court | Chancery Division |
Practice - Trial - View - Res outside jurisdiction - Considerations for view by judge -
The greater part of the 1,500 acre Ocean Island in the Western Pacific was formerly covered by extensive deposits of high grade phosphate on top of a base of coral limestone. For over 70 years that phosphate had been extracted by open-cast working, first by a company, and since 1920 by the first three defendants, the British Phosphate Commissioners. At the material time the phosphate deposits were nearing exhaustion and mining was expected to end in some three years, by which time about three-quarters of the island would have been mined. During the second world war, due to the occupation by Japanese forces, nearly all the inhabitants were deported and most of the buildings destroyed. Since the end of the war the surviving inhabitants have been living about 1,600 miles away on an island in the Fiji group, called Rabi, but they were in no way abandoning Ocean Island. During the last 15 years the islanders had been actively making claims in the political and international fields and, as one aspect of their claims, the present action was brought by 12 plaintiffs as representatives of the islanders. The writ primarily claimed, against the commissioners, an order for specific performance of certain agreements to replant parts of some 250 acres with food-bearing trees or damages in lieu thereof. The writ also claimed a declaration against the fourth defendant, the Attorney-General, that the United Kingdom Government, acting by the Governor of the Gilbert and Ellice Islands Colony, was bound to prescribe the trees and shrubs to be planted in pursuance of certain deeds and, alternatively, damages. Further, there was a claim for damages in respect of the extraction of phosphate from land on which the commissioners had obtained no mining rights, and also for the removal of a quantity of sand. The total sums involved were very large. The action began on April 8, 1975, and it was expected to take several months. Over 30 witnesses had been examined and numerous photographs of the island landscape had been put in evidence. On the plaintiffs' application that the trial judge should visit Ocean Island and the Attorney-General's application that if Ocean Island were viewed so should Rabi be: —
Held, that the application of R.S.C., Ord. 35, r. 8 (1) was not restricted to cases in which the place or thing to be viewed lay within the jurisdiction and it could apply in cases in which equity, acting in personam, was concerned with land outside the jurisdiction; that the rule gave the judge a discretion that what a judge perceived on a view was itself evidence, and that as the application to hold a view amounted to an application to receive evidence, the proper approach was to consider not whether a sufficient case for holding the view had been made out, but whether there were sufficient grounds for rejecting the application; and that, accordingly, due to the accepted basis of awarding costs of the view and the case going over the Long Vacation, the objections as to costs and delay lost their force and that in view of the importance of the issues Ocean Island ought to be viewed, and also, if required, the island of Rabi.
The following cases are referred to in the judgment:
Buckingham v. Daily News Ltd. [
Goold v. Evans & Co. [
Tameshwar v. The Queen [
No additional case was cited in argument.
RULING
The facts are sufficiently stated by Megarry J.
J. R. Macdonald and C. L. Purle for the plaintiffs.
R. A. MacCrindle Q.C., N. C. H. Browne-Wilkinson Q.C. and D. K. Rattee for the first and third defendants, the British Phosphate Commissioners.
J. G. Le Quesne Q.C., J. E. Vinelott Q.C., P. L. Gibson and D. C. Unwin for the fourth defendant, the Attorney-General.
The fifth to eighteenth defendants did not appear and were not represented.
MEGARRY J. This case is now in its 15th week. I have heard the testimony of over 30 witnesses, the pleadings are well over 100 pages long, and there must be, I think, well over 10,000 pages of documents which have been either agreed or proved. The case concerns an island in the Western Pacific called Ocean Island. The island lies just south of the equator on the other side of the world, about 170 degs. west of Greenwich. It is not much over 1,500 acres in area, but the greater part of it was formerly covered by extensive deposits of high-grade phosphate on top of a base d coral limestone. For over 70 years that phosphate has been extracted by open-cast working, first by a company, and then, since 1920, by the British Phosphate Commissioners. Throughout there have been three commissioners, one appointed by the Government of Australia, another by the Government of the United Kingdom, and the third by the Government of New Zealand. The phosphate deposits are nearing exhaustion, and mining is expected to end in some three years' time. By then, about three-quarters of the island will have been mined.
Ocean Island has for long formed part of the Gilbert and Ellice Islands Colony. During the last war it was occupied by the Japanese, who killed or deported nearly all the inhabitants, and destroyed most of the buildings on the island, and much else besides. When the war was over, the surviving inhabitants were collected together, and for nearly 30 years they have been living some 1,600 miles away on an island in the Fiji Group called Rabi, a name spelled without the “m” that, for...
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...St. Edmundsbury & Ipswich Diocesan Board of Finance v. Clark, [1973] Ch. 323; [1973] 2 All E.R. 1155, considered. (7) Tito v. Waddell, [1975] 1 W.L.R. 1303; [1975] 3 All E.R. 997, distinguished. Legislation construed: Rules of the Supreme Court, O.35, r.3: The relevant terms of this rule ar......
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