White v Brunton

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE FOX,LORD JUSTICE STEPHEN BROWN
Judgment Date12 March 1984
Judgment citation (vLex)[1984] EWCA Civ J0312-1
Docket Number84/0047A
CourtCourt of Appeal (Civil Division)
Date12 March 1984
George Malcolm James White
Appellant (Plaintiff)
and
John Greville Brunton
Respondent (Defendant)

[1984] EWCA Civ J0312-1

Before:

The Master of The Rolls

(Sir John Donaldson)

Lord Justice Fox

and

Lord Justice Stephen Brown

84/0047A

1978 W. No. 274

IN THE SUPREME COURT OF JUDICATURE

COURT of APPEAL (CIVIL Division)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MIDDLESBROUGH DISTRICT REGISTRY

(MR. JUSTICE McCULLOUGH)

Royal Courts of Justice.

MR. R. REID, Q.C. and MR. J. FRYER-SPEDDING (instructed by Messrs. Freeman Daly & Jacks of Darlington) appeared on behalf of the Appellant.

MR. R. STEWART, Q.C. and MR. B. SOMMERVILLE (instructed by Messrs. Latimer Hicks Marsham & Little of Darlington) appeared on behalf of the Respondent.

THE MASTER OF THE ROLLS
1

This is an appeal from a decision of Mr. Justice McCullough on a preliminary point. It has itself given rise to a preliminary point in this court, namely whether leave to appeal is required.

2

The starting point is clear enough. By section 18(1) (h) of the Supreme Court Act 1981, subject to certain immaterial exceptions, "no appeal shall lie to the Court of Appeal without the leave of the court or tribunal in question or of the Court of Appeal from any interlocutory order or interlocutory judgment." But, as is well known, this clarity conceals the obscurity of what is and is not an interlocutory order or judgment.

3

In Shubrook v. Tufnell (1882) 9 Queen's Bench Division 621 Sir George Jessel, M.R. and Lord Justice Lindley held, in effect, that an order is final if it finally determines the matter in litigation. Thus the issue of final or interlocutory depended upon the nature and effect of the order as made. I refer to this as the "order approach".

4

In Salaman v. Warner (1891) 1 Queen's Bench 734, in which Shubrook's case does not appear to have been cited, a Court of Appeal consisting of Lord Esher, M.R., Lord Justice Fry and Lord Justice Lopes held that a final order is one made on such an application or proceeding that, for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation. Thus the issue of final or interlocutory depended upon the nature of the application or proceedings giving rise to the order and not upon the order itself. I refer to this as the "application approach".

5

In Bozson v. Altrincham District Council (1903) 1 King's Bench 547a Court of Appeal consisting of the Earl of Halsbury, L.C., Lord Alverstone, C.J. and Sir Francis Jeune, P. reverted to the order approach.

6

In re Page, Hill v. Fladgate (1910) 1 Chancery 489 a Court of Appeal consisting of Sir Herbert Cozens-Hardy, M.R., Lord Justices Fletcher Moulton and Buckley refused to apply the order approach to a case of striking out the proceedings, but declined to propound any rule of general application.

7

The next occasion upon which the problem was looked at on broad lines of principle was in Salter Rex & Co. v. Ghosh (1971) 2 Queen's Bench 597 where Lord Denning, M.R., with the agreement of Lord Justices Edmund-Davies and Stamp, considered and contrasted the judgment of Lord Alverstone, C.J. in Bozson's case with that of Lord Esher, M.R. in Salaman v. Warner. Lord Denning said, at page 601, "Lord Alverstone was right in logic, but Lord Esher was right in experience. Lord Esher's test has always been applied in practice…I would apply Lord Esher's test to an order refusing a new trial. I look to the application for a new trial and not to the order made. If the application for a new trial were granted, it would clearly be interlocutory. So equally, when it is refused, it is interlocutory.

8

"This question of 'final' or 'interlocutory' is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point. Most orders have now...

To continue reading

Request your trial
151 cases
  • Jumabhoy Asad v Aw Cheok Huat Mick and Others
    • Singapore
    • Court of Appeal (Singapore)
    • 31 July 2003
    ... ... that in England, the test adopted would appear to be the “application” approach: see Salaman v Warner [1891] 1 QB 734, which was applied in White v Brunton [1984] 1QB 571 and this latter case in turn declared that the Bozson’s test was no longer good law ... 11  That is the English ... ...
  • Antigua Commercial Bank Intended v Louise Martin (as widow and executrix of the estate of alexis Martin)
    • Antigua and Barbuda
    • Court of Appeal (Antigua and Barbuda)
    • 15 January 2008
    ...The order which the High Court made on the application to set aside the judgment in default of defence therefore lacked finality. White v Brunton [1984] 2 All ER 606 distinguished; Vehicles and Supplies Ltd. et al v Financial Institutions Services Ltd. [2005] UKPC 24 applied;Jn. Marie a......
  • Ruby Investment (Pte) Ltd v Candipark Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 8 August 1989
    ...it is not a final but an interlocutory order.Whilst the English courts have consistently adopted the Salaman test (see White v Brunton [1984] QB 570), there are two relevant local decisions wherein the courts have adopted the Bozson test.The first decision is that of the Federal Court sitti......
  • Wellmix Organics (International) Pte Ltd v Lau Yu Man
    • Singapore
    • Court of Appeal (Singapore)
    • 21 March 2006
    ...was dismissed. There was nothing more to the action. 21 The Privy Council in Strathmore Group v Fraser did refer to White v Brunton [1984] QB 570, a case where the court held that a decision on a preliminary issue of documentary construction was a final order. This was how Sir John Donaldso......
  • Request a trial to view additional results
2 firm's commentaries

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT