Day 052 - 21 Nov 94 - Page 04


     
     1
     2        My Lord, we have, in fact, in the skeleton argument at
     3        paragraph 1.3 on the second page set out a rather longer
     4        extract from that authority.  My Lord, I do not know if
     5        your Lordship has that little bundle of authorities, but it
     6        may as well be if your Lordship has actually got the case
     7        in front of you to read on from where that citation in the
     8        White Book breaks off.
     9
    10   MR. JUSTICE BELL:  Yes.
    11
    12   MR. RAMPTON:  "It was said by Mr. Barber in his very powerful
    13        speech to us:  'You are taking away an advantage'" -----
    14
    15   MS. STEEL:  Sorry, can you tell me where you are?
    16
    17   MR. RAMPTON:  My Lord, it is 711.
    18
    19   MR. JUSTICE BELL:  The wording of the rule (which is the old
    20        rule at the bottom of page 710 and top of page 711) is
    21        really quite like Rule 8 of Order 20, is it not, in some
    22        respects?
    23
    24   MR. RAMPTON:  Rule 8?  Yes, it is.
    25
    26   MR. JUSTICE BELL:  The part about determining the real question
    27        in controversy.
    28
    29   MR. RAMPTON:  Yes, I am not at all sure at the moment I see a
    30        distinction between Rules 5 and 8 because Rule 8, talking
    31        as it does of any document, is apt to include pleadings.
    32
    33   MR. JUSTICE BELL:  Yes.
    34
    35   MR. RAMPTON:  It may be it was thought that some kind of broader
    36        discretion ought to be given to the court under Rule 5 if,
    37        indeed, it is possible to think of a broader discretion
    38        than is given by Rule 8.  I read on from the words:  "It
    39        was said by Mr. Barber in his very powerful speech to us:
    40         'You are taking away an advantage from the Plaintiffs who
    41        have got judgment below, by making an amendment at the last
    42        moment.' In one sense we should be taking away an advantage
    43        from them, but only an advantage which they have obtained
    44        by a mistake of the other side, contrary to the true
    45        bearing of the law on the rights of the parties.
    46
    47        The question seems to me to be this, can you by the
    48        imposition of any terms place the other side in as good a
    49        position for the purpose of having the question of right
    50        determined as they were in at the time when the mistake of 
    51        judgment was committed?  It does not seem to me material to 
    52        consider whether the mistake of judgment was accidental or 
    53        not, if not intended to overreach.   There is not rule that
    54        only slips or accidental errors are to be corrected.   The
    55        rule says", and then Bowen L.J. Quotes the rule and goes
    56        on: "I have found  in my experience that there is one
    57        panacea which heals every sore in litigation, and that is
    58        costs.  I have very seldom, if ever, been unfortunate
    59        enough to come across an instance, where a person has made
    60        a mistake in his pleadings which has put the other side to

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