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

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