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[1972] 2 All ER 238

The Conoco Britannia; J H Pigott & Son Ltd v Owners of the ships Conoco Britannia, Conoco Espana and Conoco Libya

QUEEN'S BENCH DIVISION (ADMIRALTY COURT)

BRANDON J


13 JANUARY, 4 FEBRUARY 1972



Admiralty - Jurisdiction - Action in rem - Claim for equitable relief - Specific performance - Claim in respect of damage sustained by tug supplied under towage contract - Claim by suppliers of tug for specific performance of contract to indemnify tugowners in respect of loss and damage - Whether court having jurisdiction to entertain claim for equitable remedy in action in rem - Effect of failure of defendant to appear to action in rem claiming equitable relief.

Admiralty - Jurisdiction - Action in rem - Claim arising out of agreement relating to use or hire of ship - Claim in respect of damage to tug supplied under a towage contract - Whether jurisdiction limited to claims in respect of agreements relating to the use or hire of a ship for the carriage of goods - Administration of Justice Act 1956, ss 1(1)(h), 3(4).

The plaintiffs supplied a tug to a ship belonging to the defendants under a towage contract incorporating the United Kingdom Standard Towage Conditions including a provision for indemnity in case of casualties. The tug was supplied by the plaintiffs pursuant to a contract between themselves and the tugowners, U T Ltd As the result of a collision between the tug and the defendants' vessel the tug was sunk with loss of life among her crew. The plaintiffs brought an action in rem against a sister ship of the defendants. The writ was endorsed with claims for an indemnity under the towage contract in respect of loss and damage sustained by U T Ltd, specific performance of the defendants' obligation under the towage contract to indemnify U T Ltd, and damages. The defendants applied to set aside the writ on the grounds (i) that the court had no jurisdiction in rem under s 3(4)^a of the Administration of Justice Act 1956 since the writ disclosed no claim mentioned in paras (d) to (r) s 1(1)^b of that Act; (ii) that it contained a claim for specific performance which, being an equitable remedy in personam, could not be brought in an action in rem.

^a     Section 3(4) is set out at p 242 g, post

^b     Section 1(1), so far as material, is set out at p 242 e, post

Held - The motion would be dismissed for the following reasons--

(i) the words 'any agreement ... relating to the use or hire of a ship' in s 1(1)(h) of the 1956 Act were not limited to contracts for the carriage of goods but were wide enough to cover damage sustained by a tug supplied under a towage contract (see p 242 j, post);

(ii) the effect of both the 1956 Act and the Supreme Court of Judicature (Consolidation) Act 1925 was that the court could and must give all legal and equitable relief properly available to a party; accordingly, the court had jurisdiction in proceedings in rem to entertain a claim for specific performance (see p 244 h to p 245 a, post).

Per Brandon J. If it is right that, where a defendant does not appear to an action in rem, the plaintiff has no right to do more than satisfy judgment out of the res,

[1972] 2 All ER 238 at 239

it is arguable that where equitable relief, such as specific performance or an injunction, is claimed in an action in rem, and the defendant does not appear, the defendant will not be able to enforce an order granting the relief claimed (see p 245 f to j, post); The Dictator [1891-94] All ER Rep 360 and The Gemma [1895-99] All ER Rep 596 considered.

Notes

For the exercise of admiralty jurisdiction, see 1 Halsbury's Laws (3rd Edn) 48-51, paras 88-91, and for cases on the subject, see 1 Digest (repl) 120-122, 66-71.

For the present equitable jurisdiction by all divisions of the High Court, see 14 Halsbury's Laws (3rd Edn) 518, 519, paras 985, 986.

For the Administration of Justice Act 1956, ss 1, 3, see 1 Halsbury's Statutes (3rd Edn) 21, 26.

Cases referred to in judgment

Banco, The, Monte Ulia (Owners) v Banco (Owners) [1971] 1All ER 524, [1971] P 137, [1971] 2 WLR 335, [1971] 1 Lloyd's Rep 49, Digest Supp.

Dictator, The [1892] P 304, [1891-94] All ER Rep 360, 61 LJP 73, 67 LT 563, 7 Asp MLC 251, 1 Digest (Repl) 121, 68.

Gemma, The [1899] P 285, [1895-99] All ER Rep 596, 68 LJP 110, 81 LT 379, 8 Asp MLC 585, 1 Digest (Repl) 264, 1657.

Nautik, The [1895] P 121, 64 LJP 61,72 LT 21, 7 Asp MLC 591, 1 Digest (Repl) 189, 741.

Cases and authority also cited

Beswick v Beswick [1967] 2 All ER 1197, [1968] AC 58.

Hart v Herwig [1873] 8 Ch App 860.

Leoborg, The [1962] 2 Lloyd's Rep 146.

Ripon City, The [1897] P 226, [1895-99] All ER Rep 487.

Roberta, The [1938] P 1.

Tolten, The, United Africa co Ltd v Tolten (Owners) [1946] 2 All ER 372, [1946] P 135.

Vera Cruz (No 2), The (1884) 9 PD 96.

West (Richard) and Partners (Inverness) Ltd v Dick [1969] 1 All ER 289, [1969] 2 Ch 424.

14 Halsbury's Laws (3rd Edn) 523.

Motion

This was a motion by the defendants, World Wide Transport Inc, owners of the ships Conoco Britannia, Conoco Espana and Conoco Libya, sister ships of the Conoco Arrow, to set aside the writ or stay proceedings in an action in rem brought by the plaintiffs, J H Pigott & Son Ltd, claiming relief by way of indemnity in respect of loss and damage arising out of a collision at Immingham in the river Humber on 27 November 1969 between the defendants' tanker Conoco Arrow and the tug Hullman owned by United Towing Ltd, and at the material time supplied by the plaintiffs to the defendants under a towage contract. The facts are set out in the judgment.

A P Clarke for the plaintiffs.

Nicholas Bridges-Adams for the defendants.

4 February 1972. The following judgment was delivered.



BRANDON J.

This is an application by the defendants in an action in rem to set aside the writ. The facts giving rise to the application are these. On 27 November 1969 there was collision between a vessel called the Conoco Arrow and a tug called the Hullman in the River Humber off the Immingham oil jetty. As a result of the collision the tug was sunk and there was loss of life among her crew. The owners of the Conoco Arrow are a Liberian company called World Wide Transport Inc. The owners of the tug were an English company, United Towing Ltd. The

[1972] 2 All ER 238 at 240

tug had been supplied to the ship under a towage contract made between the shipowners and another English company, J H Pigott & Son Ltd That contract incorporated the United Kingdom Standard Towage Conditions, including a provision with regard to indemnity in case of casualties.

As I have indicated, the suppliers of the tug were not her owners, and they in turn made the tug available to the shipowners pursuant to a contract which they had with the tugowners, United Towing Ltd That contract I have not seen, and I do not know its terms, but it appears that they include some similar terms with regard to indemnity, or at any rate may include such terms.

Arising out of those circumstances, a number of claims have been put forward. The tugowners are claiming an indemnity from the shipowners; the tug suppliers are claiming an indemnity from the shipowners; the tugowners are claiming an indemnity from the tug suppliers and included in the damage for which indemnity is claimed is liability to the dependants of the deceased crew for loss of life. The way that has been dealt with I understand is that all but one of the dependants has been compensated without prejudice to the ultimate liability to bear that compensation. Not only have claims been put forward, but various writs have been issued. I shall describe them in order of date.

The first is a writ issued on 16 November 1971; it is a writ in personam in which United Towing Ltd are named as plaintiffs and J H Pigott & Son Ltd as defendants. The claim is to be indemnified by the defendants in respect of loss and damage sustained by the plaintiffs by reason of a collision between their tug Hullman and the ship Conoco Arrow in the River Humber on or about 27 November 1969, under a contract for the use or hire of the Hullman made between the plaintiffs and the defendants on or about 26 November 1969.

The second writ, which began the action in which this application is made, was issued on 18 November 1971. In that writ J H Pigott & Son Ltd are named as plaintiffs and the owners of the ships Conoco Britannia, Conoco Espana and Conoco Libya are named as defendants. It is, therefore, what may be compendiously described as a sister ship action in rem. The claim endorsed on that writ is as follows:

'The Plaintiffs' claim specific performance of the Defendants' obligation under a contract dated December 1963 between the Plaintiffs and the Defendants to indemnify the Plaintiffs and/or United Towing Limited in respect of the loss and damage sustained by United Towing Limited by reason of a collision which occurred in the River Humber off the Immingham Oil Jetty on the 27th November 1969 between the motor tug "Hullman" and the ship "Conoco Arrow" which at all material times was owned by the Defendants.'

On 26 November 1971 a third writ was issued. It was also a writ in rem. The parties to it were the same as in the second writ, and the claim endorsed on the writ was as follows:

'The Plaintiffs claim is for a declaration or order that they are entitled by reason of a Contract dated December, 1963 made between the Plaintiffs and the Defendants to be indemnified by the Defendants in respect of any liability that the Plaintiffs may have under a Contract dated on or about the 27th November, 1969 to indemnity United Towing Limited in respect of damage, loss or expense suffered by United Towing Limited in consequence of a collision [which is then described again].'

The notice of motion is dated 10 December 1971 and in its original form it asks that the writ in the action be set aside on the grounds that the writ is irregular, in that, whereas by the writ the plaintiffs seek to invoke the jurisdiction in rem of the court under s 3(4) of the Administration of Justice Act 1956, the writ discloses no claim mentioned in paras (d) to (r) of s 1(1) of that Act. As will be observed, the notice of

[1972] 2 All ER 238 at 241

motion mentions only one ground for setting aside the writ, namely that the claim does not come within paras (d) to (r) of s 1(1) of the 1956 Act. At the time when the motion first came before me, some weeks ago, the defendants had not yet accepted service of the writ, and a fortiori had not appeared to it, but at that hearing it was agreed that the defendants should accept service of the writ without prejudice to their application. On that occasion counsel for the defendants raised in argument a point which, in my view, was not covered by his notice of motion, which was this. He said that, quite apart from the question whether the claim was one mentioned in paras (d) to (r) of s 1(1) of the 1956 Act, the claim was one seeking equitable relief by way of specific performance of a contract, and that such a claim was not of a kind that the court had power to entertain in proceedings in rem.

It was necessary to adjourn the hearing of the motion and I heard further argument today. At the first hearing I suggested to counsel for the plaintiffs that the description of the claims as endorsed on the writ was not altogether happy. It seemed to me that it was wrong to treat the two claims raised by the writ as being claims for specific performance of a contract. It seemed to me that there were really two claims arising out of the contract, put in the alternative, which were of different kinds. The first claim was a claim for payment by the defendants to the plaintiffs of an indemnity under the contract. This seemed to me to be an ordinary common law claim under a contract. The other claim was for an order for specific performance of an obligation under the same contract of the defendants to pay an indemnity to a third party, namely, United Towing Ltd It therefore occurred to me that, while it was right to describe the second claim as a claim for specific performance, it was not right to describe the first claim as such. It seemed to me further that, so long as the writ remained in that form, the true issues raised were liable to be confused. Counsel for the plaintiffs accepted this approach and, as a result, he has applied for leave to amend the writ in order to deal with the point and he has taken the opportunity to add a third claim which was also the subject of discussion.

As amended the claim endorsed on the writ is for:

'1. Payment to the Plaintiffs by way of indemnity under a towage contract, being a contract for the use or hire of a ship, dated December 1963 between the Plaintiffs and the Defendants in respect of the loss and damage sustained by United Towing Limited by reason of a collision [and then the collision is described].

'2. Payment to United Towing Limited by way of indemnity under the said contract between the Plaintiffs and the Defendants and/or specific performance of the Defendants' obligation under the said contract to indemnity United Towing Limited in respect of the loss and damage sustained by United Towing Limited by reason of the collision aforesaid.

'3. Damages for the Defendants' breach of the said contract in failing to indemnify the Plaintiffs and/or United Towing Limited under the said contract in respect of the loss and damage sustained by United Towing Limited by reason of the collision aforesaid.'

I thought it right to give leave to the plaintiffs to make those amendments to the writ, that is to say, to strike out the whole of the claim as originally endorsed and to substitute those three claims, on terms that the amendment would be without prejudice to any application by the defendants to set aside the amended writ or to strike out the whole or any part of the claim as amended, and also without prejudice to the right of the defendants to amend their notice of motion necessary. In fact it occurred to me that, even before the amendment of the writ, the notice of motion was also incomplete because, as I have indicated, counsel had already argued a second point which was not raised in the notice. In these circumstances, after some discussion, counsel for the defendants applied to amend the notice of motion in two respects. Firstly, in order to raise the second point which had previously been argued

[1972] 2 All ER 238 at 242

without objection from the other side; and, secondly, in order to deal with the new situation created by the amendment of the writ.

While I have not yet had a formal amended notice of motion, as I understand the amendments which will be made, the amended notice of motion will include, as an additional ground for setting aside the writ:

'... that in the said writ the plaintiffs make a claim for specific performance being a claim which cannot be brought in an action in rem under the said s 3(4).'

Then the amended notice of motion is to go on:

'Alternatively, that the whole or part of the claim endorsed on the writ be struck out under RSC Ord 18 r 19(1)(a).'

I think it right that the notice of motion should be amended in that way in order to raise clearly the various matters which have been argued before me. Those questions can, I think, be stated in this way. The first question is whether the three claims now endorsed on the amended writ come within paras (d) to (r) of s 1(1) of the 1956 Act. The second question is whether, assuming that they do, the court nevertheless cannot entertain the second claim, ie the claim for specific performance, because that is seeking an equitable remedy of a kind which it is inappropriate to seek in an action in rem.

In order to decide these questions it is necessary first to consider the terms of the 1956 Act. That provides, so far as material, by s 1(1):

'The Admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following questions or claims--... (d) any claim for damage done by a ship; (e) any claim for damage received by a ship ... (h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship ... (k) any claim in the nature of towage in respect of a ship or an aircraft ... '

Then s 3(4) provides:

'In the case of any such claim as is mentioned in paragraphs (d) to (r) of subsection (1) of section one of this Act, being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship, the Admiralty jurisdiction of the High Court ... may ... be invoked by an action in rem against--(a) that ship, if at the time when the action is brought it is beneficially owned as respects all the shares therein by that person; or (b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid.'

I consider, first, the question whether the claims endorsed on the amended writ come within any of the paragraphs of s 1(1) which I have cited. For the plaintiffs it was argued that all three claims came within para (h). It was said that they were claims arising out of an agreement relating to the use or hire of a ship, namely, the tug Hullman. For the defendants it was argued that the words 'relating ... to the use or hire of a ship' should be construed ejusdem generis with the proceeding words in para (h), namely, 'relating to the carriage of goods in a ship', and should accordingly be given a narrow construction which would not cover the case of a towage contract under which a tug is hired to attend on and assist a ship. I am of the opinion that there is no reason for giving a restricted meaning to the words 'relating to the use or hire of a ship'. It seems to me that the words in their ordinary and natural meaning are amply wide enough to cover the case of the hire of a tug under a towage contract, and, even if this Act stood alone without any history behind it, I should be of that

[1972] 2 All ER 238 at 243

opinion. The point is, however, to my mind, put almost beyond doubt when one does consider the history of the jurisdiction in this matter. The jurisdiction, so far as I understand it, was first conferred by the Administration of Justice Act 1920 and then re-conferred by the Supreme Court of Judicature (Consolidation) Act 1925. And, although the arrangement of the words is different in the relevant provisions of those Acts, the substance of the jurisdiction conferred seems to me to be very much the same.

By s 22(1)(a) of the 1925 Act, the court was given jurisdiction in relation to Admiralty matters to hear and determine any of the following questions ar claims:

'... (xii) Any claim--(1) arising out of an agreement relating to the use or hire of a ship; or (2) relating to the carriage of goods in a ship; or (3) in tort in respect of goods carried in a ship ... '

and then there is a qualification with regard to the domicil of the shipowner that is not relevant for this purpose. Now, when one looks at that provision, it is impossible, as counsel for the defendants himself conceded, to argue that item (1) should be construed as ejusdem generis with item (2) and it seems to me that, in that Act at any rate, it would be almost impossible to argue that a restricted meaning should be given to the expression 'agreement relating to the use or hire of a ship'. It was suggested that, by rearranging the wording in the 1956 Act, Parliament was cutting down the jurisdiction. I cannot accept that argument.

I have, therefore, no hesitation in holding that the first ground relied on by counsel for the defendants is bad. As I am of that opinion, it is not necessary that I should express a conclusion on the question whether the claims would come within certain other paragraphs of s 1(1) which have been canvassed, namely (d), (e) and (k). Since it is unnecessary to express an opinion on those questions, I do not propose to do so. I shall only say that I think that there are arguable points in relation to them.

I turn next to the second ground relied on by the defendants. It seems to me to present greater difficulties. The argument has been put in a number of different ways. The first way it was put was that the remedy of specific performance is an equitable remedy; that equity operates in personam; and that it is, therefore, inappropriate to use a proceeding in rem as a method of obtaining such relief. An alternative way in which it was put was to say that, if the defendant to an action of specific performance brought in rem did not appear, then the court would not make an order against him since it would be unable to enforce the order. It was said that it would be impossible to enforce an order by execution against a personal defendant, when that defendant had never been served personally with a writ, and had never appeared to an action in rem properly begun by the service of a writ on his ship.

I can find nothing in the 1956 Act to lend any support to these arguments and indeed it seems to me that they are inconsistent with the terms of that Act. It cannot be disputed, I think, that, on the footing that the claim comes within para (h) of s 1(1), it also comes prima facie within s 3(4) as a claim which can be brought in rem against a sister ship. In order to give effect to the arguments of the defendants it would, as it seems to me, be necessary to qualify the express words of s 3(4)in some way. The subsection provides: '... the ... jurisdiction ... may be invoked'. Prima facie one would suppose that, once the jurisdiction was invoked, the court could give all the remedies in an action in rem that it would be able to give in an action in personam. It is therefore necessary to read some qualifying words into the Act, limiting the remedies that can be asked for or given in an action in rem of this kind. Looking at it negatively only, I can see no reason why, when Parliament has expressed itself in plain words, the court should read into the provisions any qualification of that kind. But, looking at it more positively, it seems to me that the court must take account of the provisions of the Supreme Court of Judicature (Consolidation) Act 1925, which deals more generally with the jurisdiction of the court and the

[1972] 2 All ER 238 at 244

remedies which the court can and ought to give in proceedings begun before it. The 1925 Act provides:

'36.--Subject to the express provisions of any other Act, in every civil cause or matter commenced in the High Court law and equity shall be administered by the High Court and the Court of Appeal, as the case may be, according to the provisions of the seven sections of this Act next following.

'37.--If a plaintiff or petitioner claims to be entitled to any equitable estate or right, or to relief on any equitable ground against any deed, instrument or contract, or against any right, title or claim whatsoever asserted by any defendant or respondent in the cause or matter, or to any relief founded upon a legal right, which formerly could only have been given by a court of equity, the court or judge shall give to the plaintiff or petitioner the same relief as ought formerly to have been given by the Court of Chancery in a suit or proceeding for the like purpose properly instituted ...

'42.--Subject to the provisions of this Act for giving effect to equitable rights and other matters of equity, the court or judge shall give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations and liabilities existing by the common law or by any custom, or created by any statute, in the same manner as those matters would formerly have been given effect to by any of the courts the jurisdiction of which was vested in the High Court constituted by the Act of 1873.

'43.--The High Court and the Court of Appeal respectively, in the exercise of the jurisdiction vested in them by this Act, shall, in every cause or matter pending before the court, grant, either absolutely or on such terms and conditions as the court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by them in the cause or matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided.'

By s 225 of the same Act the word 'party' is defined as including--

'every person served with notice of or attending any proceeding, although not named on the record.'

It has been held in a case^c which is cited in the note to that provision of the Act in the Supreme Court Practice 1970^d that the word 'party' as there defined includes a person served but not appearing, so that, in construing s 43, one must give that meaning to the word 'parties'.

^c     See Re Evans [1893] 1 Ch 252 at 264, per Lindley LJ

^d     See vol 2, para 3506

It seems to me that the intention of the framers of the original Judicature Acts was that after the constitution of the High Court, one tribunal should have jurisdiction to deal with all equitable and legal claims, set-offs and counterclaims in one proceeding. Not only should it have jurisdiction to do so, but should, wherever possible, endeavour to do so. It seems to me that, if those provisions are to be followed in the letter and the spirit, then the court ought not to accede to the argument that the court has no power in an action in rem to give equitable relief. In my view the effect of both the 1956 Act and of the 1925 Act is that the court can and must, when it is asked to do so, give all legal and equitable relief properly available to a party, either in proceedings in personam or in proceedings in rem. In this connection I would observe that arrest of the res is not necessary to give the court jurisdiction in an action in rem. (See The Nautik and the County Courts Act 1959, s 83.)

For the reasons which I have given I am of opinion that the second ground relied on by the defendants is also bad. I hold that the court has jurisdiction in a proceeding

[1972] 2 All ER 238 at 245

in rem to entertain all the three claims endorsed on the amended writ, and I decline either to set aside the writ, or to strike out any of those claims on the ground of want of jurisdiction.

It is necessary to give some further consideration to the point made that, if a defendant does not appear to a claim for equitable relief, such as specific performance, a situation may arise where any order made would be unenforceable and therefore the court might refrain from making such order. It seems to me that this has nothing to do with jurisdiction. It may be that, if an action in rem for specific performance is brought, and if the defendant does not appear to it, and if the plaintiff then moves for judgment in default of appearance, a question will arise whether the court ought to make an order which it may not be able to enforce. I do not see, if I am right in what I have said up until now, how at that stage a question can arise whether the court has jurisdiction to make the order in the strict sense. It may be that, in some other case hereafter, the court will have to decide questions of that kind, but they do not arise for decision at the moment.

It has been held in cases where the claim has been for money, that, where the value of the res is insufficient to satisfy a money judgment given in an action in rem, the plaintiff may execute against the defendant who has appeared in the ordinary way, for instance, by writ of fieri facias, in order to recover the balance. The basis on which it has been so held appears to be that, when a defendant enters an appearance to an action in rem, the action continues from then on also as an action in personam. The decisions on the point are The Dictaton and The Gemma, and the authority of those decisions was recently recognised by the Court of Appeal in The Banco. It has been thought to be implicit in those decisions that, in a case where the defendant did not appear to an action in rem, there would be no right in the plaintiff to do more than satisfy the judgment out of the res. There would be no further right to issue the ordinary forms of execution in order to recover the balance outstanding. I think it is right to say that, although that view of the law may well be implicit in the three decisions to which I have referred, yet the point did not strictly speaking arise for decision in any of them, and has not therefore strictly speaking been determined.

The relevance of these cases to the present case is this. It may be said that, if where a money claim exceeds the value of the res and the defendant does not appear, the plaintiff cannot enforce recovery of the balance by ordinary processes, then equally, in a case where equitable relief, such as specific performance or an injunction, is claimed and the defendant has not appeared, the plaintiff cannot enforce an order for specific performance or an order granting an injunction. I say that that may be argued; I do not say that it is right. It seems to me that, when these questions do arise for argument and decision, there will have to be a very close examination of the law on these topics. It seems to me that close examination will have to be given to the forms of judgments which have been traditional in Admiralty actions in rem in the High Court and the relevance and applicability of the present rules of the Supreme Court relating to the form of money judgments. It seems to me that there will also have to be a very close examination of the reasoning underlying the decisions is such cases as The Dictator and The Gemma. It may be--I will say no more--that in view of the provisions of the Supreme Court of Judicature (Consolidation) Act 1925, and of the 1956 Act, to which I have referred, that the distinctions made between what can be done when a defendant appears and what can be done when he does not appear are not justified.

One further matter I wish to mention. It did occur to me at one time that the defendants might be prejudiced by the joinder of all three of the claims in one writ,

[1972] 2 All ER 238 at 246

in this way. They might wish to appear to defend the first and third claims in respect of which the argument with regard to equitable relief has no application. They might at the same time wish not to appear to the second claim but to rely on the court not making any order personally against a defendant who did not appear. If the defendants had felt prejudiced in that way, I think that the right way of dealing with the matter would have been to ensure that the claims were severed, so that claims one and three formed the subject-matter of one action and claim two the subject-matter of another action, thus leaving the defendants free to elect separately in relation to the different categories of claims. However, when I put this matter to counsel for the defendants, he told me that his clients would not wish to have severance of the claims in order to enable them to adopt what would inevitably be a somewhat chancy course. That being so, while I thought it right to mention the matter in order to show that it has not been overlooked, it does not seem to me that it is necessary to do anything to assist the defendant in that respect. The result of my judgment is that this motion as amended is dismissed.

Motion dismissed.

Solicitors: Norton, Rose, Botterell & Roche (for the plaintiffs); Hill, Dickinson & Co (for the defendants).

N P Metcalfe Esq Barrister