Day 052 - 21 Nov 94 - Page 08
1 be ordered to pay, not only the costs of the amendment, but
2 also the costs thrown away by the adjournment."
3
4 My Lord, I do not know whether there is anything else of
5 that section that I need to read to your Lordship, unless
6 anybody wishes me to do so?
7
8 My Lord, unless your Lordship wishes me to read out any
9 more of that? On this document, my Lord, it is clear as
10 the years have passed that what Bowen L.J. said in Cropper
11 v. Smith in which he was strongly supported by Lord Justice
12 Ayles Smith has become, as it were, the locus classicus of
13 the learning on this topic. Perhaps I need only refer in
14 support of that proposition to what was said by Lord
15 Justice Edmund Davies in Associated Leisure v. Associated
16 News Papers 1970, Volume 2, QB Report. I think the report
17 begins at page 450. I have only copied the short passage
18 from the judgment of Edmund Davies L.J. which starts at
19 just below C on page 457.
20
21 "Edmund Davies L.J. I agree", Lord Denning having said
22 that the Lords believed to amend -- my Lord, this is a late
23 application for leave to amend the Defence.
24
25 MR. JUSTICE BELL: This was where they wanted to plead
26 justification for the West End Mafia?
27
28 MR. RAMPTON: That is right, the Mafia connection. Admittedly,
29 this was before trial and not at trial, but it was very
30 shortly before trial: "Edmund Davies L.J. said: "I agree,
31 and I add some very brief observations in this
32 interlocutory appeal simply because we are differing from
33 the judge, who obviously went into the matter with the
34 greatest care.
35 These courts are here to administer justice. The concept
36 of justice is not confined to the interests of the
37 particular litigants; it embraces and extends to the
38 protection of the public weal. The issues involved in this
39 litigation have an importance of direct concern to the
40 community."
41
42 My Lord, I pause there to observe -- I think I am right --
43 that that kind of observation was made in the Court of
44 Appeal in this case. I do not know that there is any judge
45 before whom this case has come that was not of a similar
46 view in relation to this action by McDonald's against these
47 Defendants. My Lord, it has this bearing, perhaps, on this
48 application, that if the cases is, in general, a matter of
49 some public importance, then, as I have submitted on
50 previous occasions both to your Lordship and to the Court
51 of Appeal, that part of it which is, arguably, of most
52 public importance is the question whether the Plaintiffs'
53 food causes heart disease and cancer in their customers.
54
55 My Lord, if that issue were not decided by your Lordship
56 because of a defect in the pleading, a lack of clarity or
57 an ambiguity, then, my Lord, it would be a very serious
58 matter for the public interest.
59
60 My Lord, Lord Justice Davies goes on: "The defendants
