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

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