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.
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10 MR. JUSTICE BELL: Yes.
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12 MR. RAMPTON: "It was said by Mr. Barber in his very powerful
13 speech to us: 'You are taking away an advantage'" -----
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15 MS. STEEL: Sorry, can you tell me where you are?
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17 MR. RAMPTON: My Lord, it is 711.
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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?
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24 MR. RAMPTON: Rule 8? Yes, it is.
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26 MR. JUSTICE BELL: The part about determining the real question
27 in controversy.
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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.
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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
