Arbitration — Application for leave to appeal under section 1 of the Arbitration Act 1979 — Delays in setting down for hearing — Whether requirements in Birkett v James applied to application to strike out for want of prosecution — Whether discretion to strike out properly exercised
On May 28 1992
an arbitrator in rent review proceedings between the parties published his
award accepting the respondent landlord’s submissions that asbestos in the
relevant premises should have been removed by the tenant in accordance with a
covenant in the lease and that the premises should be valued accordingly.
Within 21 days of the award the tenant issued an originating notice of motion
and summons seeking leave to appeal under section 1 of the Arbitration Act
1979. There was a lapse in the commercial court management and the question of
the possible transfer of the application to the Chancery Division was left in
abeyance for nine months. On March 19 1993 the matter was transferred to the
Chancery Division. Only on April 29 1993 was the tenant’s solicitor informed of
the transfer. On August 19 1993 the hearing was fixed for December 2 1993
following agreements between the parties as to dates and estimates for the
duration of the hearing. On November 24 1993 the landlord served a notice of
motion to dismiss the application for leave to appeal for want of prosecution.
On December 9 1993 the deputy judge of the Chancery Division gave judgment
striking out the application for leave to appeal for want of prosecution. The
tenant appealed, contending that: (1) the requirements in Birkett v James
[1978] AC 297, particularly that proof of prejudice is an indispensable
precondition to striking out an application for leave to appeal on a point of
law arising from an arbitration, were applicable; and (2) alternatively, that
the deputy judge wrongly exercised his discretion to strike out.
The following
cases are referred to in this report.
Antaios
Compania Naviera SA v Salen Rederierna AB
[1985] AC 191; [1984] 3 WLR 592; [1984] 3 All ER 229; [1984] 2 Lloyd’s Rep 235,
HL
Baleares,
The [1993] 1 Lloyd’s Rep 215
Birkett v James [1978] AC 297; [1977] 3 WLR 38; [1977] 2 All ER 801,
HL
Brown v Board of Education of Topeka [1953] 349 US 294
Costellow v Somerset County Council [1993] 1 WLR 256; [1993] 1 All ER
952, CA
Department
of Transport v Chris Smaller (Transport) Ltd
[1989] AC 1197; [1989] 2 WLR 578; [1989] 1 All ER 897, HL
Mebro Oil
SA v Gatoil International Inc [1985] 2
Lloyd’s Rep 234
Pioneer
Shipping v BTP Tioxide Ltd (‘The Nema’) [1982]
AC 724; [1981] 3 WLR 292; [1981] 2 All ER 1030; [1981] 2 Lloyd’s Rep 239, HL
Rheinoel
GmbH v Huron Liberian Co, ‘The Concordia’ [1985]
2 Lloyd’s Rep 55
Roebuck v Mungovin [1994] 2 WLR 290
Secretary
of State for the Environment v Euston Centre
Investments Ltd [1994] 1 WLR 563
Stepney
Contractors Ltd v Clive Welburn Construction
(1992) 28 Con LR 163
not apply. To accept the argument that they applied to applications under
section 1 of the Arbitration Act 1979 would seriously undermine the ability of
the commercial court to carry out the policy of the 1979 Act to ensure prompt
action by
strike out. The commercial court guide was less explicit than it could be and
para 7.2 thereof could give rise to a misunderstanding in cases of transfer.
Further, there had been no clear authority that the requirements in Birkett v
James are inapplicable.
This was an
appeal against the decision of John Cherryman QC, sitting as a deputy judge of
the Chancery Division, who on December 9 1993 made an order striking out an
application for leave to appeal by the appellant, the Secretary of State for
the Environment, under section 1 of the Arbitration Act 1979, on a summons
issued by the respondent, Euston Centre Investments Ltd.
Jonathan Gaunt
QC and Erica Foggin (instructed by the Treasury Solicitor) appeared for the
appellant; Michael Barnes QC and John Male (instructed by S J Berwin & Co)
represented the respondent.
Giving the
first judgment at the invitation of Dillon LJ, STEYN LJ said: The
principal question in this appeal is whether the principles laid down in Birkett
v James [1978] AC 297 are applicable to a motion to strike out for want
of prosecution an application for leave to appeal under section 1 of the
Arbitration Act 1979. It is common ground that the High Court has jurisdiction
to strike out such an application for want of prosecution. The question posed
is whether it is a precondition to striking out such an application that the
delay involved has caused, or is likely to cause or to have caused, serious
prejudice to the other party.
Under a lease
dated June 9 1970 Euston Centre Investments Ltd is the landlord of Euston
Tower, Euston Road, London NW1, and the Secretary of State for the Environment
is the tenant. The term of the lease is for 49 years from March 25 1970. The
lease contains a rent review clause. It provides for rent reviews every seven years.
In the event of a difference the matter is to be settled by the decision of a
sole arbitrator agreed by the parties or appointed by the President of the
Royal Institution of Chartered Surveyors.
In March 1991
a rent review became due. The matter was not resolved by agreement. An
arbitrator was appointed. In February and April 1992 arbitration hearings were
held. There was an issue about asbestos discovered in the building. The
landlord argued that the asbestos should have been removed by the tenant pursuant
to a covenant before the review date. The landlord contended that the premises
should be valued as if the asbestos had been removed. The tenant argued that
there was no breach of covenant and that what was to be valued was a building
with asbestos. On May 28 1992 the arbitrator published his award. He accepted
the landlord’s argument that the asbestos should have been removed and made no
deduction in respect of asbestos.
The tenant
wishes to appeal on what is said to be a point of law within the meaning of
section 1 of the 1979 Act. Within 21 days after the publication of the award,
which is the time-limit stipulated by Ord 73, r5, the tenant caused an
originating notice of motion and summons seeking leave to appeal to be served
and entered. The tenant accepts the arbitrator’s decision as regards asbestos
surrounding certain vertical riser ducts, but wishes to contend that, in the
absence of any finding that there was any damage to the rest of the asbestos,
the arbitrator should not have found that the other asbestos should have been
removed.
Four
procedural matters must now be explained. First of all, arbitration matters are
assigned to the commercial court. Second, the practice is that an application
for leave to appeal in a rent review arbitration is normally transferred to the
Chancery Division. Third, the details of the practice are more fully explained
by Anthony Colman, Practice and Procedure of the Commercial Court (1990)
3rd ed, pp162-163:
If the
substance of the arbitration is clearly commercial a date for the hearing of
the application can if requested be obtained from the Commercial Court Listing
Officer when the summons is issued, although it may be found more convenient to
postpone obtaining a date until after the summons has been served so that the
date can be agreed by liaison between the solicitors, the Listing Officer and
counsel’s clerks. If on the other hand the substance of the arbitration is not
manifestly commercial or concerned with the law of arbitration procedure, the
applicant will normally be required to leave the summons in the Commercial
Court Office so that one of the commercial judges may have the opportunity of
deciding whether to direct the application to be heard otherwise than by a
commercial judge in the exercise of his discretion under RSC Order 73, rule
6(1). If the judge does make such a direction the Registry will inform the
applicants’ solicitors who must apply for a date to the appropriate court, as
directed by the commercial judge. If the commercial judge does not make such a
direction the Registry will inform the applicant’s solicitor who should then
liaise with the Listing Officer as to the date for the hearing of the
application for leave to appeal by the commercial judge.
Fourth, the
current edition of the Guide to Commercial Court Practice, which is to
be found at p1239 of The Supreme Court Practice 1993 (vol 1), provides
in para 7.2 as follows:
In
arbitration matters it is the particular duty of the court to see that court
proceedings are not a cause of delay. A hearing date must be applied for
promptly after the issue of the relevant process or after obtaining leave to
appeal under the Arbitration Act 1979. Delay will prejudice any application for
relief. Where it comes to the notice of the court that improper delay is
occurring, it may itself direct that the matter be listed.
Para 7.2 first
appeared in the guide in March 1990. This is the procedural framework against
which subsequent events must be examined.
There was a
lapse in commercial court case management. The question of the possible
transfer of the application to the Chancery Division was left in abeyance for
some nine months. On March 19 1993 and by order of Saville J (now Saville LJ)
the matter was transferred to the Chancery Division. Only on April 29 1993 was
the Treasury Solicitor (the tenant’s solicitor) informed of the transfer. That
involved a period of delay of about 10 months. The lawyer in charge of the case
in the Treasury Solicitor’s office states on affidavit that he,
. . .
telephoned the Commercial Court from time to time but heard nothing from them
until 29th April 1993.
He had no
attendance notes and never wrote to the clerk of the commercial court.
On June 9 1993
the Treasury Solicitor, writing on behalf of the tenant, suggested to the landlord’s
solicitors that the clerks of leading counsel, who had appeared at the
arbitration, should be in contact to fix a date. On June 15 the landlord’s
solicitors agreed. On June 21 the Treasury Solicitor instructed his counsel’s
clerk to contact other clerks,
. . . with a
view to obtaining a hearing date in the Chancery Division as soon as possible.
In July and
August 1993 counsel for the tenant and landlord respectively gave estimates for
the duration of the hearing. On August 19 1993 the hearing date was fixed for
December 2 1993.
On November 24
1993 the landlord served a notice of motion to dismiss the application for
leave to appeal for want of prosecution. On the same day the affidavit in
support was served. On November 29 1993 the affidavit in opposition was served.
On December 2
1993 Mr John Cherryman QC, sitting as a deputy judge of the Chancery Division,
heard argument on the question of dismissal for want of prosecution first. He
reserved judgment. On December 9 he gave judgment striking out the application
for leave to appeal for want of prosecution. That judgment is now reported: Secretary
of State for the Environment v Euston Centre Investments Ltd [1994]
1 WLR 563. The judge said that a question of general importance arose, namely
whether the principles to be applied were those stated in Birkett v James
supra, or, because an application for leave to appeal from an arbitration
award is involved, some other principles. The judge came to the following
conclusion (at [1994] 1 WLR 563 at pp 568H-569A):
My conclusion
therefore is that the inherent power to strike out applications for leave is
not limited by Birkett v James principles but is exercisable
whenever there has been a failure to conduct and prosecute an appeal with
proper dispatch. Whether such power should be exercised in any particular case
is, of course, a matter for the discretion of the court.
The judge then
considered the question of discretion. Taking into account the initial 10
months’ delay and the five weeks it took the Treasury Solicitor to act upon
notification of transfer, the judge concluded that he ought to strike out the
application.
On this appeal
Mr Jonathan Gaunt QC, for the tenant, makes two broad submissions. First, he
submits that the judge was wrong when he ruled that the Birkett v James
requirements are inapplicable. He argues that proof of prejudice is an
indispensable precondition to striking out an application for leave to appeal
on a point of law arising from an arbitration award. If this submission is
right, Mr Michael Barnes QC, for the landlord, concedes that the appeal must
succeed. Alternatively, if Birkett v James is inapplicable, Mr
Gaunt submits that the judge exercised his discretion wrongly.
Birkett v James point
It is manifest
that the High Court has inherent power to strike out for want of prosecution an
application for leave to appeal under section 1 of the 1979 Act or an appeal
under that section. The terrain of the debate is whether the Birkett v James
requirements, and in particular the requirement of prejudice, are applicable.
I agree that
the point is of great importance. Given that under section 1 of the 1979 Act
leave to appeal may be given only on a question of law arising from an award,
it seems clear that even in a case of inexcusable delay the power to strike out
such applications for leave will seldom be available if prejudice must be
proved. On the other hand, if prejudice is not a requirement there will be
available a useful weapon to the commercial court in dealing with unacceptable
delays in such cases. And it would not follow that if there has been such delay
that the application would invariably be struck out. That would be a matter for
the court’s discretion. Given this reflection it still remains to be considered
whether as a matter of precedent Birkett v James applies.
The ratio
decidendi of Birkett v James (supra), is contained in the
following passage of Lord Diplock’s speech, at p318F:
The power
should be exercised only where the Court is satisfied either (1) that the
default has been intentional and contumelious, eg disobedience of a peremptory
order of the court; or (2)(a) that there has been inordinate and inexcusable
delay on the part of the Plaintiff or his lawyers and (b) that such delay will
give rise to a substantial risk that it is not possible to have a fair trial of
the issues in the action or is such as is likely to cause or to have caused
serious prejudice to the Defendants . . .
That passage
must, of course, be read subject to the further ruling in Birkett v James
that the power to strike out, other than in a case of contumelious conduct on
the plaintiff’s part, should not normally be exercised within the currency of
the limitation period, when it could aggravate only the prejudice to the
defendant from delay and add to the costs. For present purposes, I need not
consider the subsequent decisions of the House of Lords in Department of
Transport v Chris Smaller (Transport) Ltd [1989] AC 1197 and Roebuck
v Mungovin [1994] 2 WLR 290.
Mr Gaunt
submits that the Birkett v James principles are of general
application to civil litigation and that the only question is whether the
policy of the 1979 Act displaced them by implication. That is the wrong
approach. Birkett v James should not be read like a statute. Lord
Diplock often had occasion to emphasise that a judgment must be read subject to
the dispute to which it relates. In Birkett v James the House of
Lords was concerned with the ‘scandal’ of delays in regard to litigation, which
had not been determined by a judgment at first instance. Even if there had been
no 1979 Act it would have been a large step to say that the reasoning in Birkett
v James also applies to a case where the party has had his day in
‘court’ and there is, subject to the court’s supervisory jurisdiction, a
binding arbitration award. Clearly Birkett v James would, as a
matter of precedent, be inapplicable to such a case. On this hypothesis I would
not have been prepared to extend, as a matter of choice between competing
solutions, the Birkett v James principles to an application for
leave to appeal on a question of law arising from an award. Mr Gaunt referred
us to the fact that section 13A of the Arbitration Act 1950, as inserted by
section 102 of the Courts and Legal Services Act 1990, gives arbitrators the
power to dismiss claims in arbitration for want of prosecution. But that is
irrelevant since that power relates only to claims as yet unresolved. He also
referred us to observations of Sir Thomas Bingham MR in Costellow v Somerset
Council [1993] 1 WLR 256. That case also concerned the striking out of an
as yet untried action and is therefore also irrelevant.
Such
differential treatment of cases, depending on whether there is already a
judgment or award or not, is in no way curious. The reality of the applicant
already ‘having had his day in court’ cannot be ignored. Thus, there is a
difference between principles governing security for costs before judgment and
on appeal. And security for costs may not be awarded on the ground of an
individual’s impecuniosity at first instance, but it is a ground for the award
of security on appeal: see the discussion in the Supreme Court Practice,
1993 vol 1 at p995 et seq.
But the 1979
Act is certainly relevant. The objective of the Arbitration Act 1979 was to
reduce the scope of the supervisory jurisdiction of the English courts.
Contrary to the initial submission of Mr Gaunt, it is not only the private
interests of the parties that are relevant. There are wider interests at stake,
notably the proper functioning of our arbitration system. That is illustrated
by the guidelines laid down in The Nema [1981] 3 WLR 292 and The
Antaios [1985] AC 191, which differentiate between disputes in one-off
cases and cases involving standard form contracts or general questions of law.
And the wider interests of English commercial law are also the explanation for
the excepted special categories under section 3, which permit exclusion
agreements only in certain circumstances. One of the aims of the Arbitration
Act 1979 was to promote speedy finality in the enforcement of arbitration
awards: The Antaios (supra), per Lord Diplock at p199E and per
Lord Reskill, at pp208F-209B. Since nobody can prevent the losing party in an
arbitration from applying for leave to appeal even in the most unmeritorious
cases, it is of supreme importance to the proper working of our arbitration
system that there must be an effective procedure to ensure that
applications for leave are promptly made. That is the policy of the 1979 Act.
Having
discussed the philosophy of the 1979 Act and the impact of The Nema and The
Antaios, Mustill and Boyd, Commercial Arbitration, 2nd ed, comment at p611.
It is the
duty of the appellant to prosecute his application for leave to appeal and, if
leave is granted, the appeal itself with proper despatch. Failure to do so may
lead to the application or the appeal being struck out.
In commenting
to that effect the learned authors plainly regarded Birkett v James,
which they cite elsewhere in their book, as irrelevant. The three High Court
decisions which are cited by Mustill and Boyd in support of that passage
did not directly raise the issue which is before us. But the obiter dictum
of Bingham J (the judge in charge of the Commercial List at the time) in Mebro
Oil SA v Gatoil International Inc [1985] 2 Lloyd’s Rep 234 at p235
shows that Bingham J took the view that, under the post-1979 dispensation, a
party who failed to issue an originating motion within 21 days would be at risk
of being struck out for want of prosecution. The fact that there was then no
express requirement that the originating motion should be issued within 21 days
makes it a strong case. Plainly, Bingham J did not overlook Birkett v James,
but regarded it as irrelevant.
Para 7.2 of
the ‘Guide to Commercial Court Practice’, which I have already quoted, also
emphasises the requirement of prompt action by an applicant who is seeking
leave to appeal on a point of law arising from an arbitration award. That
provision not only has the imprimatur of the lord chief justice but it
also represents the collective view of commercial judges as to the philosophy
of the Arbitration Act 1979 and the need for prompt action by an applicant for
leave to appeal. For my part, I would respectfully endorse that approach. Given
this premise I am satisfied that if we were to accept the argument that
Birkett v James applies to applications under section 1 of the
1979 Act we would seriously undermine the ability of the commercial court to
carry out the policy of the 1979 Act to ensure prompt action by applicants.
Like the judge I would reject the submission that Birkett v James
is applicable.
That leaves
the subsidiary question when the discretion to strike out arises. The judge
referred to a lack of ‘proper despatch’. That is the way it is put in Mustill
and Boyd. That is consistent with the requirement of promptitude in para
7.2 of the guide. But perhaps the requirement, taken from a more elevated
context, that action must be taken with all deliberate speed, sums up neatly
what is required: see Brown v Board of Education of Topeka [1953]
349 US 294 at p301. And a failure to act accordingly founds the court’s
discretion to strike out. That is all I propose to say on this aspect. In
particular I consider it undesirable to lay down guidelines as to how the
discretion should be exercised. But it is right to add that in considering the
nature of the discretion it would not necessarily be right to transpose dicta
from a Birkett v James situation to a case where there is already
an award.
Discretion
point
There were
substantial and culpable delays in this case. The judge was entitled to say
that the initial period of 10 months’ delay was ‘grossly excessive delay’. On a
proper reading of para 7.2 the applicant should have applied for a hearing date
within days rather than weeks. That would have triggered the transfer to the
Chancery Division. He was also entitled to criticise the further delay of five
weeks after notification of the transfer. Alarm bells should have rung.
Immediate action was required.
Mr Gaunt
submits that the application raises a question of law of general importance and
that this factor is relevant to discretion. I would not wish to accede to the
proposition that there is, in fact, a question of law involved in this case
without thorough examination. It may be that the tenant’s complaint is in truth
that there is no evidence to support the arbitrator’s findings of fact in part
of the award. If that is in reality the point, it is not a question of law
within the meaning of section 1 of the 1979 Act: see The Baleares [1993]
1 Lloyd’s Rep 215, at pp231-232; Mustill and Boyd, op cit, p596.
But I express no view that the point should be so categorised. I put this point
to one side.
But there are
a number of other factors which cumulatively persuade me that the judge
exercised his discretion wrongly. The first and most important is that para 7.2
of the guide, which was unfortunately not drawn to the judge’s attention, is
less explicit than it could be. I have said that there is a duty to apply
promptly for a date even where the question of transfer out of the commercial
court may be under consideration. I do not resile from that view in any way. But
given the wording of para 7.2 it seems to me that there may have been scope for
misunderstanding in cases where the question of transfer to the Chancery
Division or official referees might arise. And it is also relevant that until
today there is no clear authority that Birkett v James is
inapplicable. In other words, until today practitioners might have thought that
the sanction of striking out arises only if prejudice is shown. Indeed, in the
only relevant ruling before today, Judge Fox-Andrews QC regarded Birkett
v James as applicable albeit that the point was not argued: Stepney
Contractors Ltd v Clive Welburn Construction (1992) 28 Con LR 163.
The judge in
the present case took into account that there had been previous judicial
warnings to litigants about delay in arbitration matters. But those warnings
were in very general terms and did not eliminate the specific uncertainties
which I have spelt out. Prospectively those uncertainties will be removed
today, if my lords agree, and in future a party in default will be in mercy. In
my judgment, however, it would be unjust in a case where the delay occurred
while the uncertainties existed and where a delay of 10 months was partly
caused by an administrative error of the commercial court staff to strike out the
application. Lest there be any doubt I make clear that, if my lords agree, such
an indulgent attitude would in future be inappropriate.
I would allow
the appeal. But I would respectfully draw the attention of the judge in charge
of the Commercial List, Cresswell J, to the point that para 7.2 can be improved
for the assistance of those who regularly practise in the Chancery Division or
in official referees’ courts by spelling out that the duty to apply promptly
for a date for the hearing exists even if it is a case that may be transferred.
And it may be right to make clear that the duty persists after transfer.
Moreover, it may well be that a specific reference to the sanction may also be
appropriate and the wording may generally be capable of improvement. I take the
liberty of making these suggestions since the policy of the commercial court is
to assist all users and practitioners.
Agreeing, WAITE
LJ said: The appeal should be allowed for all the reasons given by Steyn
LJ, with whose reasoning and comments in all respects, including the issue of
principle involved in the Birkett v James point, I fully concur.
I have had the
opportunity of seeing in draft the judgment that is about to be given by Dillon
LJ, with which I also fully agree.
Also agreeing,
DILLON LJ said: This appeal should be allowed on the point as to the
exercise of the judge’s discretion. The deputy judge decided this case before
the decision of the House of Lords in Roebuck v Mungovin [1994] 2
WLR 290. That case established that in a case where the rule in Birkett
v James applies and the circumstances are that there has been inordinate
and an inexcusable delay on the part of the plaintiff which has caused
prejudice to the defendant, but thereafter and before any application to strike
out the claim is issued steps have been taken by both parties with a view to
bringing the case to trial, the court has a general discretion to be exercised
upon all the circumstances of the particular case whether to strike the action
out: see per Lord Browne Wilkinson at p298 E-H.
In the present
case, as I read his judgment, the deputy judge has ruled out from his
consideration the steps which were taken by each party after the letter from
the Treasury Solicitor of June 9 1993, which notified the respondent’s solicitors
that the application for leave to appeal had been transferred to the Chancery
Division. I refer to the passage in the deputy judge’s judgment, at [1994] 1
WLR 563 at foot to 570A, where he said:
Moreover in
my judgment it is no good saying that the landlord, by its inaction and in
agreeing to fix the hearing date, appears to have concurred in the delay. When
leave to appeal from an award of an arbitrator is sought, the applicant invokes
a special statutory jurisdiction which public policy requires to be exercised
with the utmost expedition. The parties cannot dispense with this requirement
and it is quite unsafe for an applicant to assume that slow progress of a leave
application will not lead to trouble simply because the other side raises no
objection.
The criticisms
of Bingham J in The Concordia C* [1985] 2 Lloyd’s Rep 55 of the
practice of fixing hearings in relation to appeals from arbitration awards to
suit the convenience of both parties’ counsel does not automatically mean that
where an applicant or appellant has, to suit the convenience of the
respondent’s counsel, agreed to the fixing of a later hearing date for an
application for leave to appeal or an appeal than might otherwise have been
obtained, the applicant or appellant has brought it about that his appeal or
application will necessarily be struck out if the respondent chooses to ask for
it to be struck out. All the circumstances of the case have to be considered.
*Editor’s
note: See Reinoel GmbH v Huron Liberian Co.
The importance
of despatch is not so paramount that all considerations as to what the
respondent did or concurred in doing, after the end of the delay of which
complaint is made, have to be put out of mind in considering whether there
should be striking out.
The deputy
judge therefore misdirected himself and it is for this court to exercise the
discretion. On that I agree entirely with what Steyn LJ has said in his
assessment of the circumstances. But I
notified the respondent’s solicitor that the application had been transferred
to the Chancery Division. Both parties concurred in fixing the date for the
hearing of the application for leave to appeal and the particular date selected
was chosen to fit the convenience of the respondent’s leading counsel. An
earlier date was available on which leading counsel for the Crown was free, but
leading counsel for the respondent was not.
After the date
had been fixed three months elapsed. Then the respondent sprang its notice of
motion to strike out a few days before the hearing date. I do not regard that
as fair: see the observations of Lord Browne Wilkinson, to which I have
referred. They should have met the application on its merits on December 2.
In all the
circumstances it would not be just for this application to be struck out.
I also agree
with Steyn LJ that there are fields of law where striking out is possible on
the grounds of delay without having to show serious prejudice or a risk that it
would not be possible to have a fair trial of the issues, as under head 2(b) in
Birkett v James. Applications for leave to appeal against
arbitration awards and appeals against such awards are one such field.
Applications for judicial review ought to be another. Appeals to the court
under the Planning Acts, where there is a short time-limit for appealing and
various proceedings in the companies court, where the court controls the
procedure strictly, might well be others.
I, too, would
allow this appeal.
Appeal
allowed. Leave to appeal refused.
