Day 312 - 11 Dec 96 - Page 05


     
     1   MR. RAMPTON:  They are filed.  It is inter partes correspondence
     2        between the solicitors for the Plaintiff and the
     3        solicitors for the Defence.
     4
     5   MR. JUSTICE BELL:  You should have copies anyway. They are your
     6        own solicitors' letters and the ones written to them, I
     7        assume, but you check.
     8
     9   MR. MORRIS:  I do not know even if we have signed them.
    10
    11   MR. JUSTICE BELL:  I know but I cannot enquire into that.  You
    12        read them through and see if there is any objection to any
    13        of it.
    14
    15   MR. MORRIS:  Right.
    16
    17   MR. RAMPTON:  Then my Lord, damages.  For all the reasons which
    18        your Lordship was proposing to me last week, it is clear on
    19        the authorities that your Lordship is not actually
    20        permitted, or it seems to us your Lordship is not
    21        permitted, to make a discount in the damages on account of
    22        the fact that if your judgment is favourable to us that may
    23        go some way in mitigation.
    24
    25        I say that because of what the House of Lords said in
    26        Dingle v. Associated Newspapers.  I am looking for it.
    27
    28   MR. JUSTICE BELL:  Do you have a reference?
    29
    30   MR. RAMPTON:  Yes, my Lord, it is 1964, Appeal Cases, page 371.
    31        I am bound to say it seems to have disappeared but these
    32        things do happen.  I will try to find the section but at
    33        the moment I do not have it.  I will read a short passage
    34        from it.
    35
    36        All five of the Judges in the House of Lords agreed,
    37        although this part of the judgment was obiter which is why
    38        I had forgotten it, effect, that the judge must approach
    39        the case as though he were a jury.
    40
    41   MR. JUSTICE BELL: Yes.
    42
    43   MR. RAMPTON:  The old view, which is the one that I had taken
    44        and put in to my written submissions, was based on a case
    45        called Rook v Fairrie, which is reported in 1941, 1 King's
    46        Bench 507.  That was expressly disapproved.  I will just
    47        read, if I may, a short passage.  This is what, in effect,
    48        all the Judges said.  This is from the speech of Lord
    49        Moreton Henridson at page 404:
    50
    51        "My Lords, I cannot agree with the introduction of this
    52        element into the assessment of damages.  The principles to
    53        be applied by a judge in assessing damages are the same as
    54        the principles to be applied by a jury.  It cannot, I
    55        think, be right for a judge to say to a Plaintiff, in
    56        effect, a jury might well award you X pounds damages in
    57        this case, and they would not be wrong in so doing.
    58        I shall, however, take into account the fact that I have
    59        expressed a favourable opinion of you in my judgment.
    60        I shall award you a lesser sum than X pounds because that

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