Au Yeung Siu-tung and Others v. Tung Shing Ho (A Firm) (Decoration & Furniture)
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CACV000001/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 1 OF 1974 (On appeal from Workmen's Compensation Case No. 136/73) -----------------
----------------- Coram: Huggins, McMullin and Pickering, JJ. Date of Judgment: 26th April, 1974. ----------------- JUDGMENT ----------------- Huggins, J.: 1. I find myself driven to the contrary conclusion. I accept as a starting point the passage which McMullin, J. has cited from Spencer-Bower on Res Judicata (2nd ed.) 43 (a passage taken from the judgment of the Board in Kok Hoong v. Leong Cheong Kweng Mines Ltd. 1964 A.C. 993, 1010) and I agree that it neatly summarises the nature of the problem. However, the next paragraph reads:
It is the distinction between cause of action estoppel and issue estoppel which Mr. Mills-Owens submits is the clue to solving the apparently difficult problem which this case raises. That distinction was clearly recognised in New Brunswick Railway Co. v. British and French Trust Corporation, Ltd. 1939 A.C. 1. The question there was whether the defendants, against whom a default judgment had been entered in an action involving the construction of one bond, were estopped from arguing in a second action that identically worded bonds should be differently construed. No one doubted that the first judgment was decisive as to the construction of the first bond but it was held that the issue in the second action was not the same as that in the first, although it was similar, and therefore there was no estoppel as to the construction of the other bonds. The importance of the distinction was emphasised in the speech of Lord Haugham, L.C. at p.21 :
It is only in relation to issue estoppel that the result of a default judgment may be different from that flowing from a judgment by consent. Vaughan Williams, J. said in In re South American and Mexican Co., Ex parte Bank of England 1895 1 Ch. 37, 45:
Mr. Jackson-Lipkin very plausibly argues that there is a distinction between a case where a plaintiff has judgment entered against him for want of prosecution and the case where a defendant has judgment entered against him in default of appearance at the trial because, under the Rules of Court, in the latter case the plaintiff is required to prove his case before the judgment is entered. That is a matter which might be very material where there is a plea of issue estoppel, but in relation to cause of action estoppel I can see no reason for holding that a judgment by default is not just as much a judicial decision against the defaulting party as any other judgment. If a default judgment may be treated as in no way deciding the dispute between the parties 0.35 r.2 would make nonsense, for a refusal to set aside a judgment under that rule could be entirely circumvented. Mr. Jackson-Lipkin has nevertheless to submit that that is not fatal to his contention. It was submitted that the procedure available under o.35 r.2 did not exclude the possibility of an appeal and it seemed to be suggested that that might in some way justify the bringing of a second action. I do not think it would. Although such appeals are not to be encouraged, this Court has jurisdiction to hear an appeal from a judgment by default: Vint v. Hudspith (1885) 29 Ch. D. 322. However this is not an appeal against the default judgment: it is an appeal against the dismissal of the second action. I have not the slightest doubt that the bringing of a fresh action instead of applying to set aside the default judgment was frivolous and vexatious. The application to dismiss the second action was based both upon estoppel and upon the contention that the new action was frivolous and vexatious but, rightly or wrongly, the learned judge dealt with it only on the first of these grounds. Had there been a Respondent's Notice we could have dismissed the appeal on the second ground with the brevity which I think the merits of the case justify. 2. It is submitted on behalf of the Appellant that the authorities compel us to say that upon the one ground upon which the learned judge based his decision he was wrong. Although counsel for the Appellant was so persuasive that at one stage I had doubts whether there might not be some force in his submissions, I am now satisfied that the cases do not force us to so unsatisfactory a conclusion. Magnus v. National Bank of Scotland Ltd. (1888) 58 L.T. 617 is distinguishable on the basis that the dismissal of the first action in that case was by consent. It is clear that where there is a consent order one is entitled to enquire into the terms of the agreement for the purpose of ascertaining whether an estoppel arises and the parties in that case had agreed not to proceed with the first action solely because there was to be a test action. That was not a dismissal for want of prosecution in the sense in which that phrase is normally used. Hart v. Hall & Pickles Ltd. 1969 1 Q.B. 405 turned wholly upon the interpretation of the words "who is, or would if sued have been, liable" in s.6(1)(c) of the Law Reform (Married Women and Tortfeasors) Act 1935. In an action for negligence the defendant joined a haulage contractor as third party. The plaintiff thereupon joined the haulage contractor as second defendant but subsequently his claim against the second defendant was dismissed for want of prosecution. The haulage contractor as third party then set up the dismissal of the plaintiff's claim against him as a ground for the dismissal of the first defendant's claim against him. It is true that Lord Denning described the dismissal for want of prosecution as "an interlocutory order - a matter of procedure" which did "not give rise to an estoppel by res judicata" and said, citing Magnus v. National Bank of Scotland and Pople v. Evans 1969 2 Ch. 255, that the plaintiff could start another action for the same cause so long as he did so within the period allowed by the Statute of Limitations, but that was not necessary to his decision and the other two Lords Justices made no reference to estoppel in reaching the same conclusion. With respect I am by no means persuaded that it was an interlocutory order: an order may be final although made upon an interlocutory application: The Attorney General v. Great Eastern Railway Co. (1879) 27 W.R.759. Kok Hoong v. Leong Cheong Kweng Mines Ltd. was a case of issue estoppel. So were Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No.3) 1970 1 Ch. 506, Thoday v. Thoday 1964 P. 181, Elias v. Duerksen (1930) 4 D.L.R. 677, Jenkins v. Tileman (Overseas) Ltd. 1967 N.Z.L.R. 584 and Irish Land Commission v. Ryan 1900 2 I.R. 565. Pople v. Evans must be regarded not only as a case of issue estoppel but also as a special case. There the plaintiffs in the two actions were different and the primary ground of the learned judge's deoision was that the plaintiff in the first action was not vis-a-vis the defendant a trustee of the plaintiff in the second action, so that the plaintiff in the second action could not in any event be estopped per rem judicata. However, he held that even if there had been a trust relationship the order made in the first action was not such as to give rise to an estoppel. In coming to that decision the learned judge based himself upon Kok Hoong v. Leong Cheong Kweng Mines Ltd., which, as we have just seen, was another case of issue estoppel. Indeed he analysed the alleged default judgment as though dealing with a case of issue estoppel and said that the only issue upon which the defendant could have succeeded in that first action was the issue of duress. He would have held that that issue was decided in the first action but for his conclusion that the judgment was not a default judgment "within Lord Radcliffe's statement" - a statement in a case concerned with issue estoppel. The plaintiff in Pople v. Evans had previously sought to be joined as a party in the first action and the Master had held that she had no locus standi in that action. When the judgment was entered she had no means, as had the Appellant here, of setting aside the first judgment and if she had been bound she would have been defeated without ever having had an opportunity to defend herself. The fact that Lord Radcliffe, in relation to issue estoppel, used the phrase "default judgment" in a restricted sense does not, I think, mean that the words "a judgment by default" must be given the same meaning in the passage I have cited from In re South American and Mexican Co. It may be that in the present case the Defendant suffered judgment to go against him through "negligence, ignorance or indifference" (he so alleges) but there might equally be a case where a plaintiff deliberately absented himself from the trial. In all these cases, as it seems to me, the maxim interest reipublicae ut sit finis litium would express the principle upon which the court could strike out a second action either as being frivolous and vexatious or on the ground of estoppel. I find support for that view in Ker v. Williams (1885) 29 Sol. J. 681 to which I will return in a moment. A judgment is none the less "final" because it may be set aside under o.35 r.2. 3. Mr. Mills-Cwens has placed great emphasis upon the fact that the first application had been set down for hearing and this is a matter which was significant under the old Chancery practice, as appears from the judgment in In re Orrell Colliery & Fire-Brick Co. (1879) 12 Ch. D. 681. Before the changes made by and pursuant to the Judicature Act where a plaintiff sought to lose his writ there was available at Common Law a judgment of non pros., which was a final judgment as to costs only, while in Chancery a bill could be dismissed for want of prosecution but it made a difference whether the dismissal was before or after the case had been set down to be heard. The judgment of non pros. and the dismissal of a bill before setting down were no bar to a new action but a dismissal of a bill after setting down was equivalent to dismissal on the merits: see Byrne v. Frere (1828) 2 koll. 157, from which it will be seen that the Court of Chancery did not describe a dismissal after the case had been set down as a dismissal for want of prosecution, for it was one that "approaches to adjudication". Under 0.41 r.6 of the Rules of the Supreme Court 1875, unless the court otherwise directed, a judgment of non suit had the same effect as a judgment on the merits. That rule was abrogated in 1883 and thereafter a plaintiff could not elect to be non suited and if a plaintiff offered no evidence at the trial the defendant was entitled to a verdict: Fox v. Star Newspaper Co. Ltd. 1901 A.C. 19. What Sir George Jessel, MR. appears to have decided in In re Orrell Colliery & Fire-Brick Co. is that dismissal of an action in default of reply or notice of trial corresponded to the judgment of non pros., and he said that in cases where the action had not been set down the former practice had not been altered. We are concerned with a case where the application had been set down. In Armour v. Bate 1891 2 Q.B. 233 the facts were closer to those of the present case. The action was to recover money deposited by an employee with his employer. The defendant alleged that the deposit was in lieu of a fidelity bond and claimed to be entitled to indemnify himself out of the money deposited for loss arising from the dishonesty or negligence of the plaintiff. The plaintiff did not appear at the trial and counsel for the defendant asked for judgment. Judgment was entered for the defendant. The plaintiff appealed and it was argued, inter alia, that the proper order would have been one dismissing the action rather than one giving judgment for the defendant. It was, however, further contended that the rule then comparable to our o.35 r. 1 had no application because the burden of proof was on the defendant, but that was rejected. The Court of Appeal did, however, agree that, following the words of the rule, the order should have dismissed the action for default of appearance of the plaintiff. Counsel had sought an alteration to that effect because it was his submission that only where the order was in that form could he apply to have the judgment set aside under the equivalent of our o.35 r. 2. The Court in that case was not concerned with the question, which was expressly left open in In re Orrell Colliery and Fire-Brick Co. (as it was in Mayzel v. Sturm, Lipton, Lipton and Trinity Apartments Ltd. (1957) 10 D.L.R. (2d) 642), whether, if an action has been set down for hearing, the former rule of Common Law or that of the Court of Chancery ought to prevail. That question had, however, been decided in Ker v. Williams, which had not been cited by counsel in Armour v. Bate - presumably because it was not relevant. The report of Ker v. Williams says that
That was an appeal from the Chancery Division heard in August 1885 and it was held that a dismissal for want of prosecution under the equivalent of o.35 r.1 did constitute a final judgment which raised an estoppel. Mr. Jackson-Lipkin has been compelled to submit that we should either regard that case as having been overruled or say that the report is so unsatisfactory that it ought not to be treated as an authority. I readily agree that the reports in the Solicitors' Journal must be treated with care in view of the fact that they do not purport to give the ipsissima verba of the judges, but no complaint appears to have been made by judges to whom this report has been cited on other occasions and I see no reason to think it is inaccurate. Nor have I been persuaded that the decision has been overruled. I find some comfort in the fact that we still find it cited in the Supreme Court Practice and by textbook writers of repute. The case seems to me to be on all fours with the present and to be decisive. If judgment has been given dismissing an action for want of prosecution I think that common sense requires that the plaintiff shall not be allowed to annoy the defendant with subsequent actions based upon identical facts: nemo debet bis vexari pro una et eadem causa. For my part I cannot see that it makes any difference whether the first action was dismissed because the statement of claim disclosed no cause of action, because the plaintiff chose to adduce no evidence, because his cause of action was statute barred, because the court found against him upon some issue of law or fact or because he failed to prove any material fact, he not having appeared to prosecute his case at all. In the last case it may not have been determined that no cause of action exists "after a full enquiry", but it has been so determined after such enquiry as the plaintiff has enabled the court to make. It seems to me that under the adversary system that distinction is immaterial. 4. I would dismiss the appeal. 26th April, 1974. Representation: IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 1 OF 1974 (On appeal from Workmen's Compensation Case No. 136/73) -----------------
----------------- Coram: Full Court (Huggins, McMullin and Pickering, JJ.) Date of Judgment: 26th April, 1974. ----------------- JUDGMENT ----------------- Pickering, J. : I have had the advantage of studying the conflicting judgments of the learned President and of my brother McMullin together with the cases with which they deal and, despite some temptation in that regard, I do not propose to add to those cases. 2. As it seems to me, in the last analysis - indeed, long before we reach the stage of the last analysis - commonsense and common justice must be allowed their say. 3. Where there can be no question of issue estoppel for the simple reason that no issues were ever decided and that not by consent, it would be the negation of justice to hold that those issues are shut out forever from decision by virtue of an action estoppel. In those circumstances elementary justice leaves no room for action estoppel. Nothing was decided except that the plaintiff was not present and it would be oppressive for the Court now to proceed on the fiction that everything had been decided. 4. Action estoppel arises in cases where it is sought to challenge the decision itself as opposed to one or more of the issues forming an essential constituent of the decision. But what, in this case, did the decision amount to? Nothing more than an assertion that because the plaintiff was not present to prosecute his claim, that claim should be dismissed. There was no question of consent or abandonment of the claim; on the basis of the plaintiff's affidavit, no question of anything except inadvertence. In my view the judgment was not a default judgment of a type capable of supporting a plea by way of estoppel. 5. With respect to the learned President, I find myself unable to agree that the case of Pople v. Evans (1) concerned only issue estoppel or should be so regarded. In that case there was only one issue, that of duress. Had that issue been res judicata so that the plaintiff was estopped upon it, then she was estopped upon the whole cause of action. Despite that Ungoed-Thomas, J. came to the conclusion that
6. In my view Pople v. Evans(1) is a very strong case in the context of this present case and is much to be preferred to the scantily-reported old case of Ker v. Williams(2). 7. In New Brunswick Rail Co. v. British and French Trust Corporation Ltd.(3) Lord Maugham said:
8. It seems to me that the converse must be true and that if an issue had not been distinctly raised and decided in an action it is unjust and unreasonable, solely by reason of a default judgment, to prohibit the raising and deciding of that issue. 9. Influencing the contrary view, is the realisation that the appellant had a simpler recourse by way of an application to set aside the judgment for want of prosecution. But it is a hundred and one years since the 1873 Judicature Act merged the streams of law and equity. Prior to that the rigidity of the Common Law had been ameliorated by Equity but not in the Common Law Courts. Are we now to revert to the rigidity of the Common Law when this Court is, by statute, empowered to dispense Equity? I recoil from the idea. The practical effect in the present case would be that an unrepresented peasant, having blundered through the corridors of the Courts without finding his destination, would, for that reason, forever be debarred from a determination of his claim upon its merits - or at best be subjected to the vagaries of an application to set aside the judgment. He deserves better than that. And there is good authority for saying that he should have better and not be precluded by divisional doctrines which ceased to exist more than a century ago, from a determination of his claim upon its merits rather than upon a procedural nicety. 10. Having said that let me add that I concur entirely in the view that the proper course to have taken in this case was to have applied at the earliest opportunity to have the order of the 3rd November set aside. I would not wish anything which I have said to be read as encouragement to the presentation of a second action where the first has been dismissed in default of the plaintiff's appearance. The more suitable initial course is an application to set aside the default judgment and it may be that our Rules of Court should be amended to provide that in circumstances of this kind no second action may be brought unless and until an application to set aside has been made and refused. 11. I would allow the appeal leaving each side to bear its own costs thereon and order that the appellant's costs be taxed under the Legal Aid Regulations. Representation: Jackson-Lipkin (Director of Legal Aid) for appellant. Mills-Owens (Deacons) for respondent. (1) (1969) 2 Ch. 255 (2) 1885 29 Sol. J. 681 (3) 1939 A.C. 1, 19. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 1 OF 1974 (On appeal from Workmen's Compensation Case No. 136/73) -----------------
----------------- Coram: Full Court (Huggins, McMullin & Pickering, JJ.) Date of Judgment: 26th April, 1974. ----------------- JUDGMENT ----------------- McMullin, J. : The appellant was the applicant in a claim under the Workmen's Compensation Ordinance in respect of the death of his son in what was alleged to be an accident arising out of and in the course of his employment with the respondent, Tung Shing Ho, a firm of decorators and furniture makers. 2. The case was set down for hearing, the appointed date being the 3rd of November 1973 at 10.00 a.m. in the District Court, Victoria. Upon that date Mr. Peter Davies as solicitor appeared on behalf of the respondent and it is common ground that the applicant did not appear. Mr. Davies asked that the application be dismissed and the order of the court is in the following terms :
The original application was Workmen's Compensation Case No. 86 of 1973 and subsequent to these events a fresh application for Workmen's Compensation was presented to the District Court as Workmen's Compensation Case No. 136 of 1973 and it is not in dispute that it presents the same claim identically worded with that presented in the original application. This subsequent application was presented by the Deputy Director of Legal Aid who signed the application on behalf of the applicant on the 13th of November 1973, the applicant having, in the interim between the dismissal of the claim and that date, applied for and obtained legal aid. We have been informed that the reason for taking this somewhat unusual course was that the Deputy Director took the view that, in view of the explanation given by the applicant for his not being present on the occasion of the date fixed for hearing, the quickest and least costly expedient was to re-present the application once again rather than take the course of applying to have the dismissal set aside. Mr. Davies applied to the District Court to strike out this subsequent application and paragraph 6 of his supporting affidavit reads as follows :
That affidavit was dated 27th of November and the matter came on before the same District Judge on the 11th of December but the Legal Aid Department not having been served with notice of the proceedings the hearing of the application was adjourned to the 19th of December 1973. On the 14th of December the applicant filed an affidavit in which he explained the reason or his non-appearance at the hearing of the original application in the following terms :
Upon these opposed contentions the matter was argued before the District Judge on the 19th of December. The claim in Workmen's Compensation Case No. 136 of 1973 was dismissed. The relevant parts of the learned District Judge's order are in the following terms :
3. I may say, with some regret, that the problem presented to this court has something of the appearance of a conundrum in that it calls for a gratuitous exercise of ingenuity in a matter which need never have arisen had a simpler and more obvious course of action been taken at an earlier stage. For there is a sense in which it may be said that the advoeates for both points of view put before us upon this appeal are clearly in the right. Whatever may be the true value of the argument placed before us, and setting aside for the moment the manner in which I have sought to resolve the apparent conflict of opinion and authority thereby raised, it seems clear that, in view of the facts displayed upon the applicant's affidavit of the 14th of December 1973, the proper course to have taken was to have applied at the earliest opportunity to have the order of the 3rd of November set aside. We were told that the Director of Legal Aid took the view that the most expeditious as well as economic way of dealing with this situation was to present a fresh application for compensation. I need say no more than that the present appeal, involving a reserved judgment on the part of this court, is reason enough for doubting the wisdom of that view although, of course, we make no question of its bona fides. 4. The opposing views of counsel may be simply stated. Mr. Jackson-Lipkin for the appellant relies upon the dicta of courts, including the highest appellate courts in England, covering a period which stretches roughly from the beginning of the 19th century to the present date as authority for the view that no good plea of estoppel per rem judicatam can be founded upon the mere dismissal of a plaintiff's claim for want of prosecution when such an order has been made consequent upon the non-appearance in court of the plaintiff on the day of hearing. Mr. Mills-Owens for the respondent company asks us to keep steadily in mind the distinction between "issue estoppel" and "action estoppel" and to say with him that the point is a short and simple one and that there is no good precedent to support the course taken on behalf of the respondent in the present case. He relies heavily upon the fact that Order 21 of the Rules of the Supreme Court provides an exhaustive code on the subject of diseontinuance of actions and he argues that any plaintiff who has not sought to discontinue in accordance with the terms of those rules and who by his own default has permitted his claim to be dismissed must be held to have submitted to judgment which will operate as a res judicata so that his only proper course thereafter is to apply to have that judgment set aside. 5. It may be said, at the outset, that in none of the many authorities to which we were referred by counsel can the facts be said to be precisely the same as those in the present case. At first sight there does undoubtedly seem to be something strange in the suggestion that a man who has suffered his claim to be defeated through his own negligence by an order which appears intended to and capable of disposing with finality of the action should be at liberty, without more ado, and without approaching the court for the order to be set aside, simply to re-present his claim. But so to state the matter is to over-simplify it. The nature of the problem is neatly summarised in the Second Edition of Spencer-Bower on Res Judicata in the following words which appear on page 43 :
The passage is useful in another sense for it brings into focus what appears to be the central difficulty in the present case viz. : whether the order of the District Judge upon which it is sought to found the present estoppel is in truth to be regarded as a default judgment against the respondent of such a kind that it is capable of supporting any plea by way of estoppel. 6. In Pople v. Evans(1) the plaintiff was the undisclosed principal of a man called Clarke who, as her undisclosed agent, had entered into a contract with the defendant and who brought an action on her behalf for specific performance of that contract. A defence was put in substantially admitting the elements of the contract but pleading duress. About one year later Clarke was adjudicated bankrupt. Some months after that his trustee in bankruptcy informed the defendant's solicitor that he was not proceeding with the action. The defendant's solicitor applied to the Master for an order dismissing the action on account of Clarke's bankruptcy. At the hearing of that summons the defendant's solicitor disclosed that Clarke had been acting for Mrs. Pople and informed the Master that she wished to be substituted as plaintiff in the action. The Master held that she had no locus standi and dismissed the action. Thereafter she issued a writ in her own name claiming specific performance of the same contract. The defendant thereupon applied to the court to strike out the plaintiff's statement of claim on the ground that, by virtue of the Master's order, the matter was res judicata. Ungoed-Thomas, J. reviewing the principal judgments on the question over the previous 150 years adopted the following passage from the speech of Lord Radcliffe in Kok Hoong v. Leong Cheong Kweng Mines Ltd.(2) as representing the law in relation to res judicata founded on default judgments :
Taking this as his guide he went on to say that if the judgment in the Clarke action was a default judgment within the meaning of Lord Radcliffe's observation then, since the only issue upon which the defendant in the case before him could have succeeded was the issue of duress, that issue must be considered as having been determined by the order of the Master in the Clarke action and would accordingly be res judicata. He went on to say :
He then went on to consider the matter put forward by the defendant's solicitor in his affidavit and which disclosed that there had been no argument directed to the question whether the agreement was valid and enforceable and his conclusion is in the following words :
In the present case of course the District Judge's order was equally a bare dismissal for want of prosecution. It would appear that the learned judge in Pople v. Evans(1) was making a distinction of the highest importance in relation to the present dispute when, in the passages just cited, he distinguished between a dismissal for want of prosecution and a default judgment. The distinguishing mark in the case of the latter is clearly, in his opinion, to be found in the "determination of the merits of the action" by the judge or Master making the order, whether upon evidence adduced or by reference to matters pleaded on the record and actually decided at the hearing. He went on however to consider two cases in which res judicata based on want of prosecution were dealt with. These were also canvassed before us and they are decisions of the greatest importance in relation to this question. The first is the case of Byrne v. Frere(3). That was a some what complicated action involving the title to certain leaseholds which were the subject of a series of dispositions principally a marriage settlement but extending to other transactions including testamentary disputes and reaching back in time to the original settlement at the beginning of the 18th century. For present purposes, the matter culminated in an action in the year 1828 which was, of course, conducted under the old rules of pleading then in force. The plaintiff, Byrne, was seeking to annul a certain release entered into by his mother touching certain of the lands in question in the year 1768. He alleged that he was entitled to these lands by virtue of an estate tail which had become vested in possession on the day of his mother's death in 1790. He claimed not to be affected by length of time elapsed before taking his action and not to be bound by the compromise; he also claimed to impeach the release for fraud. This bill was answered and issue was joined upon it. The plaintiff did not proceed and the cause was set down by the defendant and the bill was dismissed in 1804 the order of dismission being duly enrolled. The bill which eventually found hearing before the court in 1828 was filed in 1808 and the plaintiff, being presumably confronted with the dismission of the previous bill for the same matter, relied on the fact that he had not appeared at the hearing for dismission in 1804. He claimed that that order of dismission was an ex parte order and therefore was not a bar to the new bill for the same purpose. This subsequent bill was dismissed by the court and the learned Lord Chancellor of Ireland, in a passage which has been many times repeated in subsequent judgments touching the same matters, ruled that there was a distinction between actions which are dismissed for mere want of prosecution, which are no bar to a new suit for the same cause, and actions which are dismissed for want of prosecution after the bill in the action has been published. To quote the actual words of the learned Lord Chancellor :
It is this distinction upon which Mr. Mills-Owens relies in the present case. It is a distinction between dismissals of claims in interlocutory proceedings and dismissals for want of appearance of a plaintiff at the time of hearing. In his view the setting down of an action for hearing, a fortiori the coming on of the action upon the date fixed for hearing, corresponds to publication of a bill under the old system of pleading and an action dismissed upon failure of the plaintiff to attend is, in his view, equally not a bare dismissal for want of prosecution. 7. Dealing with Byrne v. Frere(3), Ungoed-Thomas J. having reviewed the facts and the opinion of the learned Lord Chancellor said as follows :
He went on to consider the decision in Magnus v. National Bank of Scotland Ltd.(4) a case in which the plaintiffs had consented to an interlocutory order dismissing their action for want of prosecution. The reason for doing so was that it was one of a series of precisely similar actions and it was the plaintiffs' intention to let one of them proceed to trial as a test case, meanwhile discontinuing the others at the instance of the defendants. When the test action succeeded the plaintiffs then instituted the same action against the defendants as that which had been dismissed for want of prosecution with their consent. A point of res judicata was made on behalf of the defendants and Kay J. said at page 619 :
Commenting upon the passage from which these words were taken Ungoed-Thomas J. said (page 268) :
In New Brunswick Railway Company v. British and French Trust Corporation, Limited(5) Lord Maugham said at page 19 :
Similar opinions may be found in the Kok Hoong(2) case (cited supra), and in other decisions to which we were referred and which it is needless to recapitulate here. This entire body of opinion is ample authority for the proposition that there can be no question of an estoppel by res judicata unless it can be shown that the order upon which reliance is placed has "necessarily and with complete precision" determined finally the issue which is said to be covered by the estoppel. It is abundantly plain that in the present case there never was a consideration of the many issues raised in the application for workmen's compensation. None of those issues was adjudicated or even considered before the making of the order upon which it is now sought to rely. If that were the only aspect of the matter to be considered it could be said without further ado that there was no merit in the respondent's opposition to this appeal. But Mr. Mills-Owens stands upon unassailable ground inasmuch as he can point to the fact that the appellant never took steps to have the order set aside. Thereafter he can with a considerable appearance not only of reason but of righteousress ask us to insist upon the full letter of the law in relation to the consequences, as he sees them, of a plaintiff failing to attend after the action has been set down for hearing and has been called. Is there then a valid distinction at the present day between an action merely dismissed for want of prosecution, upon interlocutory application in that behalf, and one which is dismissed for want of attendance upon the date of hearing? What tells mest strongly against any such distinction is that its ratio depends entirely upon the older rules of pleading. This appears to me to be a difficulty of some real substance. In the Kok Hoong(2) case Lord Radcliffe referring to the older case of Howlett v. Tarte(6), a case often relied upon as affording a formula as to the circumstances under which an estoppel may arise in a matter decided in a previous case, goes on to say :
It should be noted that the learned judge in Pople v. Evans(1) was careful to approve of the decisions in Byrne v. Frere(3) and Magnus v. National Bank of Scotland Ltd.(4) in relation to the principle that res judicata could not be founded on dismissal for want of prosecution while studiously withholding any approval of the old distinction between cases dismissed in that way upon special application prior to publication and cases dismissed after publication of the bill (or, as here, after setting down for hearing). On the contrary, he seems to imply (see the passage quoted earlier) that unless the order made results from admissions, pleading default or is in any other sense a decision on the merits of the case it will be simply a dismissal for want of prosecution. What is there implied is that there must be a hearing of some sort or at least the determination of the issues upon matter put before the court relating to the issues appearing on the face of the pleadings. There is, as it seems to me, great weight in Mr. Jackson-Lipkin's argument that there is, for the purposes of an estoppel, a radical distinction to be made between the situation of a non-appearing plaintiff upon the date of hearing and that of a non-appearing defendant. In the latter case the plaintiff will be compelled to prove his case, albeit by formal and nominal evidence, and will receive a judgment upon the merits so shown. Where a plaintiff fails to attend and the action, as in the present case, is simply dismissed for want of prosecution it may be said that although the defendant has certainly got a valuable order in his favour it is not in the ordinary sense a judgment if by that is intended a judgment upon the merits of the case. There is no doubt however that the one case which comes close to the circumstances of the present case was distinctly in favour of the view Mr. Mills-Owens put forward. In Ker v. Williams (a decision briefly noted at page 681 of the Solicitors Journal for August 1885) Kay J. dismissed the plaintiffs' claim because in a former action, practically between the same parties and claiming in substance the same relief, judgment had been given for the defendants in default of the plaintiffs' appearance at the trial. The basis of the decision is said to have been that the first action, until it was set aside, operated as an estoppel to the plaintiffs and a subsequent action claiming the same relief was frivolous and vexatious. It is of considerable interest that this is a decision by the very same judge who three years later in Magnus v. National Bank of Scotland Ltd.(4) expressed himself so vehemently against the allegation of such an estoppel when the plaintiff had actually consented to the dismissal of his claim for want of prosecution and yet thereafter presented not merely a similar but the very same claim in a subsequent action. It is true that in that case the defendants were aware that the plaintiff had withdrawn the former action without any intention of compromising his claim and merely to facilitate the forwarding of a test case. Nevertheless the plaintiff could have discontinued his action instead of consenting to its being dismissed for want of prosecution. So far as the merits of that case, as against the merits of the present case, are concerned it seems a poor distinction to make between them that for reasons which were apparent, presumably, to everyone at the time he gave his consent, the plaintiff chose to consent to an order which on the face of it implied a final decision not to proceed with his claim instead of discontinuing it; whereas in the present case for reasons which are now apparent to all concerned, but which were not apparent at the date of hearing, the plaintiff was unable to proceed with his. I think we should be slow, in the absence of compelling reasons to extend the cover of this species of estoppel to circumstances such as the present on grounds that are technical and non-substantial (to echo the words of Ungoed-Thomas J. in Pople v. Evans(1) at page 268). 8. In Orrell Colliery v. Fire-Brick Co.(7) the plaintiff's action was dismissed upon an interlocutory proceeding for want of prosecution after the statement of defence had been delivered. The company had meanwhile gone into voluntary liquidation and the plaintiff renewed his action in the winding-up proceedings, being met with a plea of estoppel on the part of the defendant company. The Master of the Rolls pointed out the distinction that existed before the Judicature Act between actions brought at Common Law and those brought in Chancery. And he said :
He left open the question whether, under the reformed rules, the Chancery or the Common Law Rules should prevail in a case where the action had actually been set down for hearing. In the Canadian case of Mayzel v. Sturm, Lipton, Lipton and Trinity Apartments Ltd.(8) an action instituted in 1950, by an interlocutory order of a Master in 1956, was dismissed for want of prosecution. A fresh action claiming the same relief was commenced in December 1956 the learned Chief Justice referred to Byrne v. Frere(3) and Nagnus v. National Bank of Scotland Ltd.(4) and also to in re Orrell Colliery v. Fire-Brick Co.(7) and in relation to the latter case he preferred to follow the opinion of Sir George Jessel, M.R. leaving open the question as to whether, had the case been set down for hearing, a dismissal for want of prosecution would have been a bar to a second action. The note of the decision in Ker v. Williams(9) says simply that judgment had been given for the defendant in default of the plaintiffs' appearance at the trial. It does not say that the plaintiffs' claim was dismissed for want of prosecution and it is not possible to say precisely what form the judgment took. Thus a distinction which has come to be regarded as doubtful in later cases and the problematic character of which is underlined by the decision in Pople v. Evans(1) does not appear to have been considered by the court in Ker v. Williams(9) at all. It cannot therefore be considered a wholly satisfactory decision on the present point. 9. Of more significance perhaps is the judgment of Kay J. in the subsequent case of Magnus v. National Bank of Scotland Ltd.(4) a full report of which appears in the Law Times. It is clearly of prime importance to his decision in that case that the former Order 23 rule 13 of the Consolidated Orders of 1860 had been repealed by the date upon which the action was tried. That Order in set terms had provided that when a cause was called on to be heard in court and the plaintiff made default of appearance the bill should be dismissed and that the dismissal should unless otherwise directed be equivalent to a dismissal on the merits and could be pleaded in bar to another suit for the same matter. Kay J. noted that that provision had been repealed and he therefore relied upon the former practice as he found it stated in a work by Lord Redesdale on the practice of the courts and in particular upon a passage which he quotes as follows :
In other words the former rule expressly provided grounds for an estoppel upon a mere calling of a case for hearing and non-appearance by the plaintiff; whereas under the revived prior practice, as the learned judge saw it, a dismission, to amount to ground for an estoppel, must be "upon hearing" and would be a bar only "when the court determined that the plaintiff had no title to the relief sought ...." The better opinion therefore would appear to be that in the circumstances of the present case all that was concluded by the order of the learned District Judge was that the plaintiff had not appeared to present his case at the trial. In the final analysis the distinction between "cause of action estoppel" and "issue estoppel", while undoubtedly it exists, is not, in the present circumstances, of much assistance to the respondent. In Thoday v. Thoday(10) the former kind of estoppel is described by Diplock L.J. at page 197 as :
He goes on immediately thereafter to say :
It is quite clear that the present case is not one in which it can be said that the order of the court has finally established that the cause of action alleged by the appellant does not exist. When the Master of the Rolls in Armour v. Bate(11) said that the effect of such a dismissal for want of prosecution would be the same as if it were a judgment dismissing the action on its merits, clearly that must mean, as Mr. Jackson-Lipkin has pointed out, that such an order is equivalent to a dismissal upon the merits only in the sense that it will give the whole of the costs to the defendant. 10. While, therefore, I am of the opinion that this appeal must succeed I would confine my conclusion to the circumstances of the present case and would not wish to give any countenance to the idea that a dilatory or negligent plaintiff can in any case simply allow his action go by default of appearance and, upon suffering a dismissal, present the same claim a second time. It can scarcely be denied that there has been on the face of it an abuse of the process of the court in that the plaintiff, or his advisers on his behalf, adopted the wrong procedure with the result that much time has been wasted and much additional costs incurred. For my part I think that the fairest order to make is that each side should bear its own costs of the appeal and that there should be an order for taxation of the successful appellant's costs under the Legal Aid Regulations. Representation: (1) Law Reports 1969 2 Ch. 255. (2) (1964) A.C. 993 at 1012. (3) (1828) 2 Mol. 157. (4) (1888) 58 L.T. 617. (2) (1964) A.C. 993. (5) (1939) A.C. 1. (6) (1861) 10 C.B.N.S. 813. (7) (1879) 12 Ch. 681. (8) (1957) 10 D.L.R. 642. (9) Solicitors Journal for August 1885 p.681. (10) (1964) Probate 181. (11) (1891) 2 Q.B.D. 235. |
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