England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GREAT GRIMSBY COUNTY COURT
(HIS HONOUR JUDGE HEATH)

		Royal Courts of Justice Strand London WC2
		10 April 1997

LORD JUSTICE MILLETT: This is an appeal by the plaintiff, Mr Duffy, from an order of His Honour Judge Heath sitting in the Great Grimsby County Court on 1 December 1995. The case concerns the plaintiff's rights as the owner of an easement for the passage of electricity through the service installations on the defendant's property. The District Judge granted a declaration that the plaintiff is entitled to such an easement, which is not in dispute, an injunction restraining the defendant from disconnecting, restricting, preventing or otherwise interfering with the supply of electricity for the use of the plaintiff, his servants or licensees, and an inquiry as to damages. The judge allowed the defendant's appeal and dismissed the action. The plaintiff now appeals to this court and asks that the order of the District Judge be restored, although before us he does not seek a reinstatement of any injunction. The case is therefore now concerned with the inquiry as to damages.

In 1985 the plaintiff took a tenancy of Unit 1, Downland Business Park, Manby Park, Louth, Lincolnshire from Manby Estates Limited. Manby Estates Limited retained land adjacent to Unit 1 on which was situate a tower block. The tower block houses an electricity mains meter which is connected to the main supply. Electricity is supplied by the Yorkshire Electricity Board by cable to the mains meter in the tower block. The meter takes readings for all electricity supplied to the land, both that which passes on to Unit 1 and other units and other electricity consumed in the tower block itself. After passing through the mains meter, the electricity passes through cables to submeters also located in the tower block. These meters supply electricity to various units. One such submeter supplies electricity to Unit 1. The Yorkshire Electricity Board bills Manby Estates Limited for all electricity supplied to the mains meter, whether consumed by Manby Estates Limited or its tenants occupying the various units. Manby Estates Limited in turn invoices the occupiers of the various units for the electricity supplied to them and uses the submeters to read the units used.

By a conveyance dated 22 September 1986 the plaintiff acquired the freehold reversion to Unit 1 from Manby Estates. The conveyance included a grant in fee simple of:

"Rights of passage of water soil gas electricity and telephone communication through the service installations serving the property as are now or may hereafter be situate on in or under the [vendor's retained land]."

"Service installations" were defined as including mains, wires, cables and apparatus for supply of electricity.

The existing arrangements for the supply of electricity to Unit 1 continued after the conveyance as before. Manby Estates Limited paid the Yorkshire Electricity Board for all the electricity consumed by it or the occupiers of the units, and the plaintiff as occupier of Unit 1 paid for the electricity consumed by him.

In 1989 the defendant acquired land from Manby Estates Limited which included the tower block in which the electricity service installation was located. The existing arrangements for the supply of electricity to Unit 1 continued. In 1992 the plaintiff leased Unit 1 to a Mr Webb. Mr Webb failed to pay the defendant for electricity and the defendant was forced to bring proceedings against him in the Lincoln County Court to recover £302.78 unpaid electricity charges. This naturally brought home to the defendant the fact that he was supplying electricity on credit to the plaintiff for use by his tenants, a credit which was not always honoured, and that there appeared to be was nothing in the conveyance which expressly compelled him to do so.

In July 1993 the defendant gave the plaintiff notice that he was proposing to terminate the existing arrangements for the supply of electricity. He demanded that after September 1993 the plaintiff should make alternative arrangements to have the electricity supplied direct to his own mains meter on Unit 1. The plaintiff sought advice from his solicitor and there then ensued lengthy correspondence between the parties or their advisers. The plaintiff was willing to make alternative arrangements for direct supply, but was not willing to bear the cost. The defendant, for his part, was prepared to extend the existing arrangements from time to time to give the plaintiff the opportunity to complete alternative arrangements, but he was not prepared to make any financial contribution.

In January 1994 Mr Webb vacated Unit 1. The plaintiff regained possession of the Unit in April. He alleges that he found a new tenant willing to take a new tenancy from 1 May 1994, but who refused to take a tenancy when he discovered that the supply of electricity to Unit 1 was not secure.

On 29 May 1994 the defendant finally cut off the supply of electricity to Unit 1. Although not in evidence, it appears to be common ground that he did so by switching off the appropriate submeter so that no electricity could pass from the mains meter in the tower block through the submeter to Unit 1.

In July 1994 the plaintiff commenced the present proceedings. He contended that he had an easement and that the act of the defendant in disconnecting the supply was an actionable interference with his enjoyment of the easement of passage of electricity through the service installations on the defendant's land. He sought an injunction and damages and applied for interlocutory relief. The defendant undertook to reconnect the supply on the plaintiff depositing a sum of £750 with his solicitors as security for future charges by the Yorkshire Electricity Board. The plaintiff did not make a deposit and the defendant did not reconnect the supply. The plaintiff alleges that he has suffered significant damages by being unable to re-let.

The Yorkshire Electricity Board has throughout been willing to make a separate supply to the plaintiff if he will meet the cost of approximately £720 and VAT of installing a mains meter, and will also undertake the necessary works of upgrading to Unit 1. The work would, of course, add to the expense of retaining a separate supply. At the time of the hearing below, the mains unit on the defendant's property was still being used to supply one other tenant, a Mr Broome.

The defendant submitted that the plaintiff was entitled to the passage of electricity through the mains, wires and cables on the defendant's land but was not entitled to the supply of electricity from the Yorkshire Electricity Board to the defendant's land in the first place since such a supply would necessarily involve the defendant in incurring a monetary liability. The District Judge rejected that contention. He ruled that the conveyance of 22 December 1986 was intended to preserve to the plaintiff the benefit of the existing arrangements for the supply of electricity to and through the service installation in the defendant's land and so on to Unit 1.

The District Judge made a number of findings of fact. He found that there had been an agreement between the plaintiff and Manby Estates Limited for the electricity to be supplied and paid for in the way which I have described in accordance with the system which was in place when the plaintiff bought Unit 1. He found that the defendant believed that the system was still effective when he bought the retained land and that it continued to subsist thereafter. He found that it was the intention of all relevant parties, including the defendant, that the plaintiff should be entitled to the benefit of the system which had been adopted for many years. He commented that the system did not involve the defendant in any net expenditure as he was reimbursed by the plaintiff. That was an incomplete statement of the facts because the arrangements did involve the defendant in extending a credit which might not be honoured, and so involved him in financial risk. The District Judge found that the defendant had cut off the electricity supply to Unit 1. He held that by so doing he acted in breach of the easement as supplemented by the agreed system for its operation and payment. Accordingly he granted the declaration and injunction sought and ordered an inquiry as to damages.

In order to explain his reasoning I read a passage towards the end of the District Judge's judgment. He said:

"It is clear to me that the intention of all relevant parties, including the defendant at all times, was that the Plaintiff should be entitled to take the benefit of not merely a right of passage over the Defendant's land but also to the benefit of a system that has been adopted for many years. The Conveyance of 22 December 1986 was designed to preserve to the Plaintiff those rights. The Plaintiff has the benefit of an easement and the Plaintiff is entitled to rely upon that easement to secure a continuing supply through the existing service installation. It therefore follows that the Plaintiff is entitled to the relief sought."

In so far as the judge found that there was an express contractual agreement between the plaintiff and Manby Estates Limited that the electricity should be supplied and paid for in the way which I have described, that is a finding of fact which this court could not disturb. But the District Judge did not find that there was any fresh agreement, whether expressly or by conduct, between the plaintiff and the defendant as to these matters, and no such agreement had in any case been pleaded. The case cannot therefore be disposed of in the way that the District Judge disposed of it. Even if the parties were of the opinion that the existing contractual arrangements between the plaintiff and Manby Estates Limited bound the defendant, their belief would be wrong in law.

The judge accordingly reversed the District Judge, holding that the plaintiff was not entitled to the supply of electricity but only to the passage of electricity to the defendant's land, and that if the defendant took steps to make sure that no such electricity entered the defendant's land, the plaintiff had no remedy.

As the judge put it:

"The plaintiff, in my judgment, has a right of passage of electricity. The defendant has no obligation to supply electricity directly or indirectly. If the plaintiff arranges for the Yorkshire Electricity Board to supply him with electricity, he is perfectly at liberty to use the existing installations in accordance with his easement, that being the right of passage. All that is necessary is for a second user meter to be installed by the YEB.

Now, one can see why the plaintiff does not want to do that; it is going to involve him in certain expenditure. But cutting off the supply of electricity paid for by the defendant is not an interference with the plaintiff's right to the passage of his electricity through the existing installation."

Accordingly, he allowed the appeal and dismissed the action.

The appellant appeals to this court. Apart from the injunction he seeks the restoration of the order made by the District Judge. The defendant has sought leave to serve a Respondent's Notice. We have given him leave to serve a Notice including the first paragraph of the proposed draft, but not otherwise. That paragraph reads as follows:

"That the Defendant's switching off of the apparatus, through which electricity had been supplied to the Plaintiff's land, did not interfere with the flow or passage of any electricity then in the system but brought about a state of affairs where no electricity would reach the system and therefore, in accordance with Rance v Elvin (1985) 50 P&CR 9, did not constitute any interference with the Plaintiff's easement for the passage of electricity."

I should add that the defendant has also sought leave to adduce fresh evidence of what has transpired since the hearing below. We have refused such leave on the ground that the evidence is irrelevant, but we have permitted counsel for the defendant to tell us that it is his client's intention, if possible, to instruct the Yorkshire Electricity Board that he no longer wishes to pay for electricity to be supplied to the tower block and accordingly to invite the Yorkshire Electricity Board to cut off the supply to the mains in the tower block.

Surprisingly, perhaps, neither party below referred the judge to the decision of this court in Rance v Elvin, a case in which the easement was, so far as I can ascertain, in identical terms to the easement in the present case, and which in other respects was similar to the present case, save for one fact. That case concerned the supply of water and not electricity.

In that case this court held that there was a crucial distinction between a) a right to a supply of water; and b) a right to an uninterrupted passage of water. A right in the terms of the right granted in the present case (but relating to water) is not a right to be supplied with water by the servient owner at his expense. It is a right to the uninterrupted passage of water and no more. It confers no right to insist upon the servient owner allowing water to enter his pipes. If, however, water does reach the pipes by any means whatever, that water must be permitted to pass through the pipes on the servient land so as to reach the dominant land. The servient owner is not bound to ensure that any water does reach the system, but if it does he cannot prevent its onward passage to the dominant tenement without being liable for action for interference with the easement.

In that case, Browne-Wilkinson LJ pointed out that the dominant owner's right to free passage was precarious, for the servient owner may refuse to pay for the supply and thereby bring about a situation where by the supply of water to his own property is disconnected; but in practice the servient owner will normally be unlikely to do this because he will need the supply for his own purposes.

In the present case, as in Rance v Elvin, the easement is to the free passage of electricity through the cables etc, which now are, or hereafter may be, upon the servient land. While, therefore, the dominant owner's rights are dependent upon the servient owner obtaining a supply in the first place to the servient land, it is in no way dependent upon the continued use of the existing service installations. If the existing service installations have to be moved, renewed or replaced, the easement continues to subsist.

If this case were concerned with water, the result would be plain beyond peradventure. By threatening to disconnect the supply to Unit 1 at the submains on the servient land, the defendant made an unlawful threat to interfere with the free passage of water through the servient land to the plaintiff's Unit 1. A disconnection was an lawful interference with the free passage of water. An injunction (probably more limited than that actually granted) would be appropriate and damages, whether large or small, would be available. But, says the defendant, this case concerns electricity, not water, and that makes all the difference.

He points out that in the case of water there is water already in the pipes under both the dominant and servient land. The supply of water to the dominant land is initiated by the dominant owner turning on a tap. When he does so he draws down, in the first instance, water already in the pipes under the dominant land. That water is shortly thereafter replenished by water which was formerly stored in pipes under the servient land, which in turn is replenished from water in the ring main outside both properties.

It is submitted that, in such a case, since the servient owner is under no obligation to ensure a supply of water to his land, he is free to block the pipes at the very outer boundary of his land, or otherwise disconnect the supply, so as to prevent any water coming from the ring main outside the servient tenement onto the servient tenement. This argument is, in effect, that of paragraph 1 of the Respondent's Notice. It is said that there is no obligation to ensure that water ever reaches the servient land at all; and this means that the servient owner can take active measures to prevent it doing so.

In the case of electricity, the defendant points out, the supply of electricity to the dominant tenement is also initiated by the dominant owner pressing a switch. The difference is that, unlike the case of water, there is no electricity stored in the cables or the mains, whether on the servient land or the dominant land. By pressing the switch the dominant owner completes the circuit and draws electricity from the Grid which, although passing from the Grid to the dominant owner almost instantaneously, nevertheless comes from the Grid and enters the service installations on the servient tenement for the first time when the switch is pressed. The defendant says that this is precisely what the servient owner is permitted to do. It does not matter how he does it, whether by a positive act, or by omission, or whether by an act on his own land or elsewhere; the servient owner is entitled to bring about a state of affairs whereby no electricity enters the servient land. The full extent of his obligation is merely to permit electricity which has already reached the servient land from proceeding thence to the dominant tenement.

Accordingly, says the defendant, the case differs from water in that when a servient owner disconnects the submains meter on the servient land, but will not only prevent fresh water flowing into the servient land, he will also interrupt the flow of water already on the servient land; and that is something he cannot do. If however the servient owner disconnects an electricity sub-meter on the servient land, he does not prevent the free passage of electricity which has already reached the servient land proceeding to the dominant land, since there is no such electricity.

The submission requires us to look with some care at the actual decision of this court in Rance v Elvin. As I have said, the facts are similar to those in the present case, save for the fact that it was concerned with the supply and passage of water. The easement in question was virtually in identical terms. Browne-Wilkinson LJ at the beginning of his judgment referred to Mr Rattee, counsel for the plaintiff/appellant in that case as follows:

"Mr Rattee made what to my mind is a crucial distinction between two distinct types of right, viz: (a) a right to a supply of water; and (b) a right to the uninterrupted passage of any water that may come into the pipes under Malcway's [the servient owner] land.

The plaintiff is now claiming only the right of type (b)...."

Still summarising Mr Rattee's argument, Browne-Wilkinson LJ

continued:

"If someone (be it Malcway or someone else) pays for such supply and water gets into the private water system, Malcway is not entitled to stop such supply passing through the system."

"Such supply" plainly means water which has already got into the private water system and this tends to support the defendant's argument.

Browne-Wilkinson LJ continued, summarising Mr Rattee's argument:

"Malcway is entitled at any time to refuse to pay for the supply of water through the meter, but in that event the plaintiff would be free to make his own arrangement with the water company."

That undoubtedly supports the plaintiff since it suggests that the plaintiff would be free to make arrangements with the water company to permit water to enter the servient land, and it would be interference with the easement if the defendant did anything to prevent the water entering the land. Browne-Wilkinson LJ then gave his answer to the submissions:

"In my judgment, Mr Rattee's submissions are correct. Looking first at the 1977 conveyance itself, the right granted is a right simply to the passage of water and no more. It does not purport to confer any right to insist on someone else ensuring the presence of water in the pipes. However, if water in fact reaches the private pipe system under Malcway's land by any means whatever, there is appurtenant to [the dominant land] a right that such water shall be permitted to pass through the pipes to [the dominant land]. No positive obligation is imposed on Malcway by such a right to the passage of water supplied by another. It is the classic form of an easement of passage. Malcway cannot do any physical act interrupting the passage of such water...."

"Such water" does not mean water that has already come into the pipes on the servient land, it means the passage of water supplied by another. I repeat:

"Malcway cannot do any physical act interrupting the passage of such water without being liable for an actionable interference. On the other hand, Malcway is under no obligation to ensure that any water does in fact reach the private water system.

....

The crucial distinction between a right to supply of water and a right to the passage of water is demonstrated by Schwann v Cotton [1916] 2 CH 459 CA."

He concluded by saying that:

"Any physical interference by Malcway with the passage of such water (eg by fracturing the pipes or turning off the supply) would be an actionable interference with the easement. But Malcway is under no obligation to ensure that any water ever comes into those pipes."

In my judgment, the distinction which Browne-Wilkinson LJ was making throughout his judgment was not between interfering with the passage of water which was already on the servient land preventing water ever reaching the servient land, it was between the obligation of the servient owner to do nothing which would prevent water from entering the servient land flowing through the pipes on the servient land to the dominant land, and the absence of any obligation to ensure that any water ever came into those pipes. Put another way, Browne-Wilkinson LJ was saying that Malcway was under no obligation to ensure that any water ever came into the pipes, but decidedly not that it was entitled to prevent water coming into the pipes.

Sir George Waller's judgment was even more clearly to this effect. He said that the servient owner's obligation was:

"....limited to a duty to allow water to flow along the pipe. It was not a duty to supply water. If Malcway did not pay, and as a result the water company cut off the supply, the plaintiff would have no claim. on the other hand, to take an absurd example as an illustration, if the water company supplied water free, Malcway would be under an obligation not to interfere with the running of the water."

He also said:

"I agree with Browne-Wilkinson L.J. that there is an easement with a negative burden, namely to allow water to flow along the pipe and not to damage the pipe. This would include a duty to allow the pipe to remain in the land and a duty not to interfere with it."

In my view he, too, was drawing a distinction between the absence of any positive obligation to ensure that water reached the pipes and the presence of a duty not to prevent water reaching the pipes or flowing through them. Such a distinction, which is in accordance with the basically negative nature of easements, is also consistent with the terms of the grant in the present case.

I have drawn attention to the fact that the easement extends not only to the supply of water and electricity, but to gas, telephone and the disposal of foul or surface water. It is plain that a right to the free passage of foul or surface water through sewage or drainage pipes under the servient tenement necessarily includes the right to have that foul or surface water enter the servient land from the dominant land. By a parity of reasoning, the right to an uninterrupted passage of water and electricity running the other way from outside the servient land through the servient land to the dominant land, necessarily involves the right to have the uninterrupted passage of water and electricity, not only through the servient tenement until it reaches the dominant land but also to the servient tenement. In my judgment the obligation of a servient owner is to take no positive step to prevent the entry of water or electricity onto his land as well as its subsequent passage through the servient land to the dominant land.

That is enough, in my judgment, to dispose of the point taken on the draft Respondent's Notice and with the distinction between electricity and water. While it is a real distinction, it is one which has no material consequences, I am accordingly of the opinion that the decision in Rance v Elvin governs this case. By disconnecting the submains meter from the supply of electricity to Unit 1, the defendant committed an actionable interference with the free passage of electricity through the service installations. In my judgment the judge was wrong to allow the appeal and dismiss the action, although I have some sympathy for him given that Rance v Elvin was not cited to him.

In the course of argument it was suggested that it would be an actionable interference with the plaintiff's easement if, by refusing to accept further supplies of electricity, the defendant brought about a situation in which the Yorkshire Electricity Board removed the service installations on the defendant's land. As at present advised, I do not consider the suggestion to be well-founded. The plaintiff is not entitled to a supply of electricity. He has no right to insist that the defendant continues to pay for such supply, and if the maintenance of the existing service installations is conditional on the defendant's willingness to pay for electricity, he has no right to insist on their continued maintenance. If they are lawfully removed by the Yorkshire Electricity Board, the plaintiff has a right to make fresh arrangements with the Board which will lead to their replacement; but that is all. However, I prefer to express no concluded view on these matters, since we have not heard full argument on them.

I would allow the appeal. I would restore the order of the District Judge in so far as it directed an inquiry as to damages. I propose to say nothing about the issues which may arise on that inquiry as to damages, nor whether the damages would be likely to be substantial or very small. All that remains for the future.

LORD JUSTICE MORRITT: I agree. There is no doubt that the plaintiff, Mr Duffy, as the owner of Unit 1 of the Downland Business Park is entitled to:

"Rights of passage of water soil gas electricity and telephone communication through the service installations serving the property as are now or may hereafter be situate on in or under...."

the land now vested in Mr Lamb.

The conveyance defined the service installations as meaning:

"....drains chanells [sic] pipes watercourses gutters mains wires cables soakaways and any other conduits and apparatus for the supply of water electricity gas or telephone or for the disposal of foul or surface water."

The supply of electricity to Unit 1 through the submeter on Mr Lamb's land was cut off on 23 May 1994. The evidence does not disclose how that was done, but there is no doubt that the result of that action was to prevent electricity reaching Unit 1 through the land of Mr Lamb from the National Grid. There is no doubt, therefore, that the action of Mr Lamb was such as to interfere with the passage of such electricity as would otherwise have flowed through the service installations, as defined, to the land of Mr Duffy. The judge, unassisted by the decision of this court in Rance v Elvin, reached the conclusion that that was not an unlawful interference with the easement, but was a lawful refusal to provide a supply of electricity to his neighbour.

Like my Lord, I think the judge was wrong because there is no sensible distinction to be drawn between Rance v Elvin and the principle it applied to the passage in water in that case, to the principle to be applied to the passage of electricity in this case. No doubt the physical properties of water and electricity are different, and the way in which they pass from one place to another is not the same. Nevertheless, the use of the mains and cables through Mr Lamb's land is essential for the passage of electricity from the Grid to Mr Duffy's land and that was interfered with. As such, it seems to me to be plain that Mr Lamb is liable. It would be unfortunate if the law were to draw distinctions between one commodity and another in dealing with easements in common form dealing with all methods of communication in the normal services from one property through another to that of the dominant owner.

I accept that Mr Lamb is under no obligation to pay for electricity supplied to Mr Duffy but I would leave open the question of whether Mr Lamb would be entitled actively to take steps to invite the Electricity Board to discontinue the supply, thereby preventing the supply of electricity to Mr Duffy. The facts appear to be that the method of transmission of electricity from the Grid to Mr Duffy's property has at all times since the servient and dominant tenements were separated, consisted of a circuit which went through the main meter on Mr Lamb's property and the submeter also on his property. Both those meters are essential parts of the circuit which is completed when Mr Duffy turns on the switch in his property. It seems to me that it should be left for further consideration, in the light of the facts as they may be found to be, whether it is open to the owner of a servient tenement by indirect means to interfere with the passage of electricity to the dominant tenement by inviting the Electricity Board in effect to do what he cannot do himself.

If it be the case, therefore, that cutting off the supply involves removing part of the circuit which is essential for the supply to Mr Duffy's property, then it must be open to further consideration whether that would be a lawful course for Mr Lamb to take.

I agree with my Lord that the appeal should be allowed and for the reasons that he has given.

LORD JUSTICE WARD: I also agree. No evidence has been led in this case to justify any distinction between water as a physical compound actually present in the pipes and electricity as a movement of electrons which may or may not be "in" the cable, bearing in mind that it takes but a fraction of a millisecond to complete the circuit once the switch is thrown.

In Rance v Elvin, this court adopted the distinction between the right to a supply of water and

"A right to the uninterrupted passage of any water that may come into the pipes under Malcway's land."

By throwing the switch in the plaintiff's land, electricity will come into the cables under the defendant's land and to do anything which interferes with that passage is a wrongful interference. Adopting the test of Sir George Waller, which defined the defendant's obligation as being the duty to allow water to flow along the pipe, and adopting the common parlance that just as water flows along a pipe so does a current of electricity flow along the cable, the act of cutting off that supply by something done on the defendant's land was an interference with the right of passage of that electrical current.

Like my Lords, I see no sensible justification for any different treatment of water, soil, gas, electricity and telephone communication through the service installations. I, too, am hesitant to say anything about the rightness or wrongness of an instruction from the defendant to the Electricity Board to disconnect the supply if that has, as a known consequence, the fact that the Electricity Board will enter upon the premises and physically remove a part of the main switch from the property leaving a gap in the circuit.

The definition of the "service installations" includes "mains" and I am uncertain what effect the removing of the "main" would have. It is true that Browne-Wilkinson LJ in Rance v Elvin did say at pages 16/17:

"Malcway is under no obligation to make arrangements with the water company for a supply of water through the meter. If Malcway were to refuse to pay for such supply and the water company therefore determined it, it would be open to the plaintiff to make his own arrangements with the water company for such supply."

Those observations were, I think, strictly obiter and it may be that the ratio is more accurately reflected in the previous passage in which he said:

"Any physical interference by Malcway with the passage of such water (e.g. by fracturing the pipes or turning off the supply) would be an actionable interference with the easement." (My emphasis).

If it is an actionable interference with the easement to turn off the supply, I am not sure what would be the effect of an instruction which causes the supply to be turned off. Likewise, Sir George Waller in his judgment referred to the negative burden of the covenant to allow the water to flow along the pipe and not to damage the pipe including:

"A duty to allow the pipe to remain in the land and a duty not to interfere with it."

I am not certain what the consequence would be if action were taken which had the effect that the main no longer remained on the land but was in some way interfered with. Those matters must await some other decision.

For the reasons given by my Lords, I, too, would allow the appeal.

Order: Appeal allowed with costs here and below. Order for Inquiry as to Damages restored.