Day 241 - 26 Apr 96 - Page 10
1 my submission, but it was something that I had only found
2 the night before I made the submission, Mr. Rampton did not
3 oppose it and it was not dealt with in your judgment -- was
4 the part of the White Book where it said that the party
5 would not be allowed to plead something which they had
6 previously disavowed. If you want me to find it where
7 I raised it, I could draw -----
8
9 MR. JUSTICE BELL: No, I know you raised it and I think I did
10 deal with it, it may have been in one sentence, but,
11 however, that does not matter.
12
13 MS. STEEL: I have not got a spare copy of this, but there are
14 only a couple of lines which anyone needs to read, so if
15 I -----
16
17 MR. JUSTICE BELL: No, I remember it perfectly clearly, you do
18 not need to remind me.
19
20 MS. STEEL: This is like a previous authority because I did not
21 have it at the time.
22
23 MR. JUSTICE BELL: I know, yes. There was a rule of law which
24 prevented it there, which I did not think there was in this
25 case.
26
27 MS. STEEL: If I just read it out what it says here?
28
29 MR. JUSTICE BELL: There is no need to; I remember it perfectly
30 clearly.
31
32 MS. STEEL: This is another case. This is stated a bit more
33 explicitly.
34
35 MR. JUSTICE BELL: Read it quickly.
36
37 MS. STEEL: It is in the case of Skarf v Jardine (1882). It is
38 on page 360 of that case. It refers to a case; it is about
39 determination by election: "Now, on that question there
40 are a great many cases; they are collected in the notes to
41 Dumpor's Case (1), and they are uniform in this respect" --
42 this is the important part -- "that where a man has an
43 option to choose one or other of two inconsistent things,
44 when once he has made his election it cannot be retracted.
45 It is final and cannot be altered".
46
47 So that would be, as we see it, a major reason for a
48 determination of a legal point of law about whether that
49 would apply to our case, whether McDonald's can plead one
50 thing explicitly stating that it is not their case that we
51 are the publishers, and then plead something else by way of
52 amendment. So that is really the major point, but
53 obviously not having had time to prepare properly for this,
54 there are quite a lot of further points that we would make
55 if we do go ahead with the appeal.
56
57 MR. JUSTICE BELL: Yes. Do you want to apply for leave to
58 appeal, Mr. Morris?
59
60 MR. MORRIS: Yes. Obviously, one reason is to save time because
