England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRT1 96/1802/2

(HIS HONOUR JUDGE BISHOP )

Royal Courts of Justice

Strand

London WC2A 2LL

Tuesday 3 February 1998

B e f o r e:

THE MASTER OF THE ROLLS

(LORD WOOLF)

LORD JUSTICE POTTER

LORD JUSTICE MAY

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SHEILA GILHAM

(Executrix of the Estate of Kenneth Gilham)

Plaintiff/Respondent

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1. WILLIAM BROWNING

2. MAUREEN BROWNING

Defendants/Appellants

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(Transcript of the handed down judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR A GOODMAN (Instructed by Messrs Reid Minty, London W1X 9AD) appeared on behalf of the Appellant

MR P KELVIN (Instructed by Messrs Barlows, Chertsey, KT16 9AF) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court)

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©Crown Copyright

JUDGMENT

LORD JUSTICE MAY: This is an appeal by leave from the judgment and order of His Honour Judge Bishop on 9.12.96 in the Kingston-upon-Thames County Court. The questions which the appeal raises are firstly whether a County Court has power to refuse to permit a party to serve an effective Notice of Discontinuance under Order 18 of the County Court Rules if to do so is an abuse, and secondly whether a general common law right to choose to be nonsuited survives in the County Court and, if it does, whether the court has jurisdiction to refuse to permit this to be done, if to do so is an abuse.

The proceedings concerned the sale of some goats. Kenneth Gilham was, with his wife, a partner in Bowers Court Farm. By an agreement made in March or April 1991 he sold the goodwill and assets of the Farm, including the goats, to Mr and Mrs Browning. In September 1991, Mr Gilham issued proceedings against the Brownings in the Kingston-upon-Thames County Court claiming £8,778.80, the balance of the purchase price. By a Re-re-amended Defence and Counterclaim they said that no further payment was due and counterclaimed for non-delivery of some of the things included in the sale and for damages for misrepresentation or breach of contract. They counterclaimed £120,000 without giving details. They said that the goats had a virulent disorder known as Johne's disease which had infected their own goats. They said that Mr Gilham or his farm manageress knew this. They say that Johne's disease has a long incubation period so that the full effect took some years to emerge, but that eventually their own goats were seriously affected.

On 21.8.92, His Honour Judge Hull Q.C. gave the Brownings conditional leave to defend upon payment into court of £5,000. Orders for directions were made on 12.10.93 including provision that affidavits used on the application for summary judgment might stand as signed witness statements. There was then what on the face of it was an excessive period of inactivity. There was at best desultory interlocutory progress between October 1993 and April 1996 when the court set the action down for trial and fixed a trial date of 13.12.96. It looks as if there had been unacceptable delay.

On 2.8.96 Mr Gilham died. On 25.9.96, the Brownings' solicitors served a substantial expert's report which for the first time particularised their loss which they then said amounted to £1.5m. On 18.10.96, the solicitors served 4 witness statements and on 21.10.96 they indicated that they wanted to serve supplemental statements from the Brownings in addition to the affidavits which had been used earlier. All this evidence was served well beyond the time envisaged by the October 1993 order for directions.

On 25.10.96, Judge Bishop directed that Mrs Gilham should be substituted as plaintiff as her husband's executrix. He also refused the Brownings leave to adduce the experts' report, the 4 witness statements and the two further supplemental statements. This decision was based on the then recently decided case in this court of Beachley Property v. Edgar (The Times, 18.7.96). The judge held that there was no proper explanation for the late service of the evidence and significantly that there was very considerable prejudice to the plaintiff because Mr Gilham had now died and was therefore not available to deal with the further evidence. The Brownings did not seek to appeal this order and have not done so in the intervening 15 months despite further cases in the Court of Appeal following on from and developing Beachley. The Brownings are not therefore, and were not on 9.12.96, in a position to contend that this decision was wrong. An appeal from that order is not before us, although Mr Goodman has submissions about abuse which tend to question the correctness of the order. It is sufficient for present purposes to say that, although in the light of developments in the Beachley approach the period of 6 weeks or more between the date of the application and the date for trial might upon reconsideration have been seen as sufficient for the plaintiff to deal with the new evidence with the help of directions from the court, the defendants were never going to get over any prejudice arising from Mr Gilham's death.

On 12.11.96, new solicitors came on the record for the Brownings. On 2.12.96, the Brownings served a notice of discontinuance of the counterclaim under County Court Order 18 rules 1 and 3. On the same day, the plaintiff issued an application for an order setting aside the notice of discontinuance which the plaintiff says was an abuse. On 9.12.96, Judge Bishop agreed to the parties' application to deem the occasion to be the start of the trial. He set aside the notice of discontinuance of the counterclaim. The Brownings then tried to choose to be nonsuited on their counterclaim. The judge refused to permit them to do so. The Brownings then offered no evidence on their counterclaim which was dismissed. The plaintiff's claim was then compromised.

On 6.2.97, the Brownings started new proceedings in the High Court against Mrs Gilham both as executrix of her husband and in her capacity as partner of Bowers Court Farm. The substance of their claim, which was not statute barred when it was started, is the same as that in the counterclaim in the first proceedings. It may be a matter for consideration on another occasion whether, if Mrs Gilham were to be sued as partner, this should have been in the original county court proceedings.

The Brownings appeal against the judge's orders setting aside the notice of discontinuance and refusing to allow them to choose to be nonsuited. The basis of the judge's decision was that what the Brownings were trying to do was an abuse because they were trying to get round the effect of his order of 25.10.96 disallowing their evidence by abandoning their counterclaim before it had been adjudicated upon so that they might start the new proceedings in which the disallowed evidence could be called. The Brownings accept that this was their purpose. But they contend that there is no power in the County Court to strike out a notice of discontinuance for abuse and they further contend that in the County Court a party has an unfettered right to chose to be nonsuited at any rate until the court begins to give its judgment. They say further that what they wanted to do was not an abuse.

Discontinuance

Discontinuing a claim or being nonsuited may not by itself prevent the bringing of fresh proceedings on the same facts. The relevant Rules and procedure are materially different in the High Court and in the County Court. In the High Court, the ability of a party to choose to be nonsuited ceased in 1883 - see Fox v. Star Newspapers [1898] 1 QB 636 and [1900] AC 19. In Fox in the Court of Appeal, at p. 639 Chitty L.J. said of the then High Court Rule providing for discontinuance:

"The principle of the rule is plain. It is that after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest. He is no longer dominus litis, and it is for the judge to say whether the action shall be discontinued and upon what terms."

The decision was upheld in the House of Lords. It may be seen in the modern context as an early example of the court managing litigation.

The present High Court Rules enable a party to discontinue without leave up to a time 14 days after the service of a defence or the service of the defendant's affidavit where the proceedings are begun by originating summons, but thereafter only where all parties consent in writing. Otherwise leave to discontinue is required - see Order 21 rules 2 and 3. If an application for leave is made under Order 21 rule 3,

"... the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just."

In other words, the court can impose conditions, one of which may be to limit or forbid the possibility of resurrecting the discontinued claim in new proceedings. Thus the Brownings could not without leave have done what they say they were entitled to do here if the proceedings had been in the High Court. Their only course would have been to apply for leave to discontinue and there seems little doubt that leave would only have been granted on terms that they were forbidden from starting all over again.

In the County Court, the Rules are different. County Court Rule 18 rule 1 provides:

"The plaintiff in an action or matter may, at any time before judgment or final order, discontinue the proceedings wholly or in part against all or any of the defendants thereto by giving notice to the proper officer and to every defendant against whom he desires to discontinue, ..."

Order 18 rule 2(1) provides that a defendant served with a notice of discontinuance may have his costs taxed and that if costs allowed on taxation are not paid within 14 days he may enter judgment for the taxed costs and the costs of entering judgment. Order 18 rule 2(3) provides:

"Discontinuance of any action or matter or a particular claim therein under rule 1 shall not be a defence to subsequent proceedings for the same or substantially the same cause of action; but if any such proceedings are subsequently brought before payment of any costs taxed under paragraph (1), the court may order them to be stayed until those costs have been paid."

Order 18 rule 3 provides that rules 1 and 2 apply with appropriate modifications to counterclaims.

In Castahno v. Brown & Root [1981] A.C. 557, in a High Court action a plaintiff claimed damages for personal injuries and interim payments were made to the plaintiff. It was later realised that a better result might be obtained if proceedings were brought in Texas and proceedings were started in the Texas State Court. The plaintiff's English solicitors then served a notice of discontinuance under Order 21 rule 2(1), a defence recently having been served which admitted liability. Further proceedings were started in the United States Federal Court in Texas and the proceedings in the State Court were ended by filing a nonsuit. Parker J. struck out the notice of discontinuance in the English proceedings as an abuse and granted an injunction restraining proceedings in the United States. He held that it was an abuse of process to use the machinery of discontinuance without leave to improve the plaintiff's position in the American proceedings and because the plaintiff had received interim payments which he could not repay. He exercised what he held to be an inherent jurisdiction of the court to prevent abuse. The Court of Appeal by a majority reversed Parker J's order. Lord Denning in a dissenting judgment observed that the Rules concerning discontinuance did not deal with the then recently introduced provisions for interim payments. Lord Denning said at [1980] 1 W.L.R. 855:

"I summarised the cases on "abuse of process" in Goldsmith v. Sperrings Ltd [1977] 1 W.L.R. 478, 489-490. I said: "On the face of it, in any particular case, the legal process may appear to be entirely proper and correct." So here, the notice of discontinuance on the face of it is in time and correctly done without leave. "What makes it wrongful," I added, "is the purpose for which it is used." If it is used for the purpose of the party obtaining some collateral advantage for himself, and not for the purpose for which such proceedings are properly designed and exist, he will be held guilty of abuse of process of the court."

The House of Lords held that the notice of discontinuance was an abuse of the process of the court and had rightly been set aside by Parker J. because the court would not have allowed the plaintiff, who had secured interim payments and an admission of liability by suing in England, to discontinue his action in order to obtain advantages by suing in a foreign court without being put on terms. Lord Scarman, with whose opinion the other Law Lords agreed, said at p. 571:

"Unless, therefore, it is possible to treat a notice of discontinuance without leave which complies with the Rules of the Supreme Court as an abuse of process (which is what Parker J. did), the notice cannot be struck out.

In the Court of Appeal, Lord Denning M.R. was prepared so to hold (p. 855). Brandon L.J. expressed no opinion. Shaw L.J., however, held that it was not possible. It seemed to him "an inversion of logic to speak of an act which purports to terminate a process as being an abuse of that process." (p. 864D). I am not sensitive to the logical difficulty. Even if it be illogical (and I do not think it is) to treat the termination of legal process as an act which can be an abuse of that process, principle requires that the illogicality be overridden, if justice requires. The court has inherent power to prevent a party from obtaining by the use of its process a collateral advantage which it would be unjust for him to retain: and termination of process can, like any other step in the process, be so used. I agree, therefore, with Parker J. and Lord Denning M.R. that service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of the process of the court."

Lord Scarman then held that it was an abuse in that case, asking whether, if leave had been required, unconditional leave would have been granted. He held that it would not and that Parker J. was right to strike out the notice of discontinuance. For reasons which are not material to the appeal now before us, Lord Scarman then held that the Court of Appeal were right to discharge the injunction and that, the notice of discontinuance having been struck out, leave to discontinue should be given on terms.

Thus in the High Court a notice of discontinuance duly served without leave may be struck out if its purpose is an abuse. Fakir v. Moller [1994] 1 Lloyd's L.R 103 is an example of the exercise by Hobhouse J. of this jurisdiction where he held that, had the plaintiffs had to apply for leave to discontinue, they would undoubtedly have been put on terms; and that by giving notice of discontinuance without leave they were attempting to avoid the imposition of those conditions and this they should not be allowed to do. The notice of discontinuance was accordingly struck out. I see no good reason why the same should not apply in the County Court to a notice of discontinuance served under County Court Order 18.

In the present case, Judge Bishop held that what the Brownings wanted to do was an abuse. He held, applying Castahno, that he had jurisdiction to strike out the notice of discontinuance and he did so. He also held that he had a similar jurisdiction in relation to the Brownings' wish to be nonsuited. He held that the entitlement to be nonsuited as of right referred to in Clack v. Arthur's Engineering Limited [1959] 2 Q.B. 211 had to be modified in the light of the later case of Castahno. Mr Goodman submits that both these decisions were wrong.

Mr Goodman submits that the only express provision enabling the County Court to deal with abuse of process is County Court Order 13 rule 5 which relates to pleadings; but a notice of discontinuance is not a pleading. He submits that the scheme of Order 18 permits a party to disengage and start again. There is no judicial discretion and no requirement of leave. The County Court power in County Court Order 37 enabling the court to set aside applies to orders, judgements or originating process, warrants or summonses. There is no express power to set aside a notice of discontinuance. He submits that section 76 of the County Courts Act 1984, which provides that "in any case not expressly provided for by or in pursuance of the Act, the general principles and practice in the High Court may be adopted and applied in a county court", is directed to extending the powers of the County Court where the County Court Rules make no provision, not to curtailing express provisions of those rules which cover the situation. Mr Goodman refers to Rolf v. Zolan [1993] 1 W.L.R. 1305 at 1313 in the judgment of Dillon L.J. and to Clack's case at p. 218 where there is reference to the predecessor of section 76 of the 1984 Act. Mr Goodman submits that the High Court practice is not applicable where County Court Order 18 provides what he refers to as a complete code without any element of judicial discretion and where in the County Court there is, he submits, an unfettered right to elect to be nonsuited under Order 21 rule 2. In the County Court, but not in the High Court, a party may still "escape by the side door and avoid a contest", even in the last years of the twentieth century. Mr Goodman accepts in general that the County Court may have elements of inherent jurisdiction but submits that there is no room for one here. He submits that Castahno may be distinguished in that the mechanism of the County Court Order 18 is precisely to enable a party to disengage and start a new action. There will always be a reason to trigger the discontinuance. The whole reason for the County Court rule is to provide a collateral advantage. He submits that the court in Castahno was driven to use abuse of process as a device to overcome the problem raised by interim payments.

It is of course important to recognise on the one hand that the court uses a jurisdiction to strike out for abuse sparingly and in plain cases where there has been misuse of the court's process, and on the other that the court is not constrained by fixed categories of circumstances in which the court has this power.

Mr Kolvin refers to what Lord Diplock said in Hunter v. Chief Constable of West Midlands [1982] AC 529 at 536C:

"My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power."

Mr Kolvin also refers to Ashmore v. British Coal Corporation [1990 2 Q.B. 338 at 348B where Stuart Smith L.J. said:

"Mr Baker submits that the tribunal did err in law. He submits that, unless she is estopped by res judicata, issue estoppel or agreement to be bound by the findings in the Thomas case, and it is common ground that she is not, the applicant has an absolute right to have her claim litigated. He argues that, because the applicant is not estopped for any of those reasons, her claim cannot be frivolous, vexatious or an abuse of process. I do not agree. A litigant has a right to have his claim litigated, provided it is not frivolous, vexatious or an abuse of the process. What may constitute such conduct must depend on all the circumstances of the case; the categories are not closed and considerations of public policy and the interests of justice may be very material."

Mr Goodman submits that Hunter and Ashmore were both extreme cases decided on public policy grounds not available in the case before us. He submits that it is a more important public policy that there should be certainty and that the relevant County Court rules should not be rendered uncertain by the possibility of the exercise of judicial discretion. But Mr Kolvin might also have referred to recent decisions of the Court of Appeal to the effect that actions may be struck out for want of prosecution where there is abuse not amounting to contumelious conduct and where the opposing party has suffered no prejudice but where the litigant has seriously abused the court's process. There is a clear public interest, in addition to the interests of individual litigants, that litigation should be justly, speedily and economically conducted and to conduct litigation in a way which is contrary to that interest is in my judgment capable of being an abuse. The court's jurisdiction and duty to manage and control cases in the interests of speed and economy is a developing one. The court's jurisdiction to control abuse is also developing, but it has the blessing of the House of Lords in Hunter's case and in Castahno's case .

In my judgment, taking account of Mr Goodman's submissions, there is nevertheless no good reason for not applying the Castahno decision to notices of discontinuance in the County Court. There is no express power in the High Court Rules to strike out a notice of discontinuance yet the jurisdiction exists. The fact that there is no express discretion in County Court Order 18 does not help Mr Goodman, since Castahno applied to a non-discretionary part of the High Court Rules. I consider that the judge was correct to hold that he had jurisdiction to strike the notice out if it were an abuse. Whether in a particular case there is abuse will be a question of fact and degree. It is a jurisdiction to be used with circumspection no doubt, but it is a jurisdiction which is available in the County Court as in the High Court.

Mr Goodman submits that seeking to discontinue in this case was not an abuse. He submits alternatively that the judge wrongly exercised his discretion. He submits that there should have been some evidence. But it was common ground and unconcealed that the Brownings' purpose was to avoid the consequences of the unappealed order of 25.10.96 and the judge was entitled to proceed on that basis. Mr Goodman submits that seeking to terminate the County Court counterclaim could not be an abuse. If there is an abuse it is in starting fresh proceedings in the High Court and it is in that case that the question of abuse should arise. I do not agree. No doubt the question could and may arise whether the High Court proceedings are an abuse, but that does not prevent the question also arising upon the notice of discontinuance in the County Court proceedings when the purpose of the discontinuance is clear. It is in my judgment right that it should then arise for two reasons. Firstly, the County Court judge was better placed to judge whether terminating the first proceedings was an abuse. Secondly, the question of abuse in the High Court proceedings would be materially affected by the question whether the counterclaim had been discontinued in the County Court, since County Court Order 18 rule 2(3) provides that discontinuance shall not be a defence to subsequent proceedings except that those proceedings may be stayed if the costs of the first proceedings have not been paid. Mr Goodman indeed submits that subsequent proceedings after discontinuance could not be an abuse by virtue of the terms of Order 18 rule 2(3).

In my judgment therefore there is jurisdiction in the County Court to strike out a notice of discontinuance if it is an abuse, and I further consider that the County Court judge in this case was plainly correct to conclude that the notice of discontinuance of the counterclaim in this case was an abuse and that he correctly exercised his discretion to strike the notice out. It was, I think, seeking to use the court process to obtain a collateral advantage which it would be unjust for the Brownings to obtain, i.e. to escape by the side door from the first action where their counterclaim was evidentially hopeless in order to start a new action where the evidential problems would not arise, and this in circumstances where a long overdue date for trial of the first action was fixed and imminent. If it were necessary to characterise the abuse adjectivally, I should say that it was plain.

Nonsuit

Nonsuiting is, as Mr Goodman accepted, an anachronism. Before the judge, submissions proceeded on the agreed basis that in the County Court, though not in the High Court, there is a preserved common law right to choose to be nonsuited up to the time when the judge gives judgment or at least until the close of the evidence. Indeed in his skeleton submission in this court Mr Kolvin for the plaintiff accepted this. In the course of oral submission however the court questioned whether this is so.

County Court Rule 21 rule 2 provides:

"(1) If the plaintiff appears at the hearing of an action or matter but fails to prove his claim to the satisfaction of the court, it may, without prejudice to any other power, either nonsuit him or give judgment for the defendant.

(2) Where, after a plaintiff has been nonsuited, or proceedings have been struck out, and costs have been awarded to the defendant, a subsequent action or matter for the same or substantially the same cause of action is brought before payment of those costs, the court may stay the subsequent action or matter until they have been paid."

Thus Rule 2(1) gives the court power to nonsuit a party instead of giving judgment against him. This may be useful, for instance, where an unskilled litigant in person fails to prove a case but might in justice be permitted to try again. It does not depend on the choice or indeed the consent of the litigant.

In Clack's case , the plaintiff employee, whose employment was terminated, claimed the balance of a month's salary instead of notice. The County Court judge, having heard evidence on both sides, found that the plaintiff had not proved his case, but invited him to amend his particulars of claim. His counsel elected not to do this and the judge then nonsuited the plaintiff under Order 23 rule 3 of the County Court Rules 1936, which was in substantially the same terms as the present Order 21 rule 2. The defendants appealed. It was held (1) that once the evidence had been completed and the judge had found the facts, he had an unfettered discretion to enter a nonsuit regardless of the absence of consent of the plaintiff; (2) that Order 23 rule 3 applied, not only when the evidence fell short of proving the pleaded case, but also where the plaintiff's evidence, but for the fact that it was disbelieved, would have substantiated his claim; but (3) that the judge had failed to exercise his discretion judicially in that (a) he arrived at his decision to nonsuit the plaintiff without hearing counsel on either side, and (b) the plaintiff had elected not to accept the invitation to amend his particulars of claim and should not be granted the concession of a nonsuit when he had already had his chance to frame his case in an alternative way, for the overriding consideration was that, in the public interest, there should be an end of litigation.

The County Court Judge had found that, although that plaintiff's case could not succeed, he was not altogether satisfied that proper justice would have been done if judgment were given for the defendants. It seemed to him to be one of the rare cases in which the plaintiff should be nonsuited. In the Court of Appeal, there were three submissions as appears from the reserved judgment of the Court given by Willmer L.J. at 216 where he said:

"Three submissions have been advanced on behalf of the defendants in support of the appeal. First, it has been contended that the power to nonsuit a plaintiff cannot be exercised without the consent of the plaintiff. Here the plaintiff never consented to be nonsuited, and was never invited to consent. Secondly, it has been urged that the rule has no application to a case such as the present, where the plaintiff's evidence, if it had been accepted, would have fully proved his case. This is not a case, it is pointed out, in which the plaintiff's evidence fell short of proving his pleaded case; on the contrary, the evidence would have proved the claim but for the fact that it was disbelieved. The defendants' third submission is that, assuming the rule to be applicable to the circumstances of this case, the judge failed to exercise his discretion judicially, in that he chose to nonsuit the plaintiff, without being invited to do so, after the plaintiff by his counsel had specifically declined an invitation to amend the particulars of claim."

Willmer L.J. reviewed the history of the retention in the County Court of the power of nonsuit saying, at p. 218, that the Court entertained no doubt that the powers of the County Court in relation to nonsuit must be related to the practice of the old courts of common law as it existed before 1873. He concluded at p. 221:

"From an examination of all these cases it seems possible to draw the following conclusions: (1) At any time up to verdict, if the plaintiff elected to be nonsuited he was entitled to it as of right, and the court had no discretion to refuse: see Robinson v. Lawrence [7 Ex. 124]; Outhwaite v. Hudson [7 Ex. 380].

(2) If before verdict the plaintiff refused to be nonsuited, the position is not so clear ...

(3) Once the evidence had been completed and the verdict of the jury taken - or, where there was no jury, once the judge had found the facts - it seems clear that the court had an unfettered discretion, if the verdict was against the plaintiff, either to enter a nonsuit or to give judgment for the defendant."

It is evident that the first of these conclusions was not strictly necessary to the court's decision, although it was the conclusion of the court after detailed consideration of authority. It was based on two pre-Judicature Act decisions both of Parke B. in 1851 and 1852. In Robinson, Parke B. said at (1851) Exch. 123 at 125:

"At common law, whenever the plaintiff ought to appear in Court, he was at liberty to withdraw: Co. Litt. 138. b., 139. a. In the present case when the judge was about to deliver his opinion, and indeed by the permission of the judge, the plaintiff withdrew. We have looked through the County Court Acts, but do not find any clause contained in them that prohibits the plaintiff from exercising this common law right."

The reference to the County Court Acts was to section 79 of the County Court Act 1846, which for present purposes contained provisions substantially the same as those in the present County Court Order 21 Rule 2(1).

The judgment in Clack concludes with an observation that consideration might be given to abolishing the power of nonsuit in the County Court. Mr Goodman points out that this has not yet been done. In the light of what Willmer L.J. said and the unqualified note in the County Court Practice based on it, Mr Goodman can scarcely be criticised for supposing that a general common law right to choose to be nonsuited did indeed survive in the County Court. It is, however, important to appreciate that, if it does survive, it is not to be found in County Court Rule 21(2). This gives the court a limited discretion to order a nonsuit: it does not give a party any right, let alone an untrammelled right, to choose to be nonsuited. What is contended for is the survival of a common law anachronism.

It is necessary to consider the process by which nonsuiting disappeared from the High Court. In Fox, it was held that the right to elect to nonsuit did not survive the 1883 High Court Rules. In the Court of Appeal, A.L. Smith L.J. said at p. 638:

"Before the Judicature Act a plaintiff, after he had brought the defendant into court, if he found the case going against him, or that he had not the requisite materials to support his claim, could elect to be nonsuited, with the result that he could bring a fresh action. It was intended, I think, by those who framed the Rules of 1875, that the power of a plaintiff thus to harass the defendant with further litigation on the same subject-matter after he had been nonsuited at a trial should be restricted. Accordingly it was provided by Order XLI., r. 6, of the Rules of 1875, that "any judgment of nonsuit, unless the Court or a judge otherwise directs, shall have the same effect as a judgment upon the merits for the defendant; but in any case of mistake, surprise, or accident any judgment of nonsuit may be set aside on such terms as to payment of costs and otherwise as to the Court or a judge shall seem just." That rule put a fetter upon the power of a plaintiff to demand as of right to be nonsuited in a common law action. It was argued that that rule still remains in force. I am clearly of opinion that it does not, because it was repealed by the existing rules, and Order LXXII., r. 2, cannot have the effect of keeping it alive. I agree with what was said on this subject by Kay J. in Magnus v. National Bank of Scotland [(1888) 36 W.R. 602; 58 L.T. 617] and by Cotton L.J. in In re Busfield [(1886) 32 Ch.D. 123 at p. 131]. I think that Order XLI., r. 6, of 1875 has been advisedly omitted from the Rules of 1883, because there is really no such thing now as a judgment of nonsuit, and it was found that the matter with which the rule dealt is provided for by the rule as to discontinuance, namely, Order XXVI., r. 1, which provides that, after a certain stage, the plaintiff cannot without the leave of the Court discontinue the action."

Chitty L.J. said at p. 638:

"I am of the same opinion. The provisions of Order XXVI. of the present rules appear to me to cover the case of what was formerly termed a nonsuit."

And then on p. 639:

"The term "discontinuance" may have had at one time a more limited meaning than it has in Order XXVI., r. 1, but it is obvious on the face of that rule that the term is there used in a broad sense, and is intended to cover the case of what in a common law action was termed a nonsuit as well as the power which a plaintiff in Chancery formerly had of dismissing his own bill."

In the House of Lords in Fox, the Earl of Halsbury L.C. said at [1900] A.C. 20:

"Our whole system has been changed, and I think the reason why the word "nonsuit" itself is not now to be found in the rules is that it was determined that the power of a plaintiff at the common law to claim a nonsuit, or the plaintiff in equity to dismiss his bill at his own option, should no longer be permitted, and it is probable that the word "discontinuance" was supposed to apply to both forms of procedure both at common law and in equity. Accordingly by Order XXVI., r. 1, the only mode by which a plaintiff can submit to defeat is under that Order, unless he allows the proceedings to go on until the verdict is recorded against him.

The word "discontinuance" no doubt had, under a former system, the more limited application, and the old system of nonsuit is manifestly no longer capable of being reconciled with the new procedure either in form or substance. The substance is that when it once comes into court, and when the plaintiff offers no support to his action, there must be a verdict for the defendant."

Thus nonsuiting disappeared from the High Court because discontinuance had been introduced by the Rules and discontinuance covered the circumstances where previously parties might have chosen to be nonsuited. Mr Goodman accepted that discontinuance under the present County Court Rule 18 is in substance identical with the right to choose to be nonsuited for which he contended.

Mr Goodman at the court's request kindly and speedily researched the origin of the Rules about discontinuance in the County Court. I for my part am most grateful for his efforts. Section 79 of the County Court Act 1846 refers to non suiting in terms substantially the same as the present Order 21 rule 2. This was the provision referred to by Parke B. in Robinson. The County Court Rules 1846 had no provision for discontinuance. Order 64 of the County Court Rules 1856 provides for "withdrawal by the plaintiff" without specifically dealing with the institution of subsequent proceedings on the same facts. It is significant that this first appearance of a species of discontinuance in the Rules occurred after the two decisions of Parke B. to which Willmer L.J. referred in Clack. Order XII rule 1 of the County Court Rules 1875 used the term "discontinuance" for the first time in the County Court. The substance of the rule was the same as Order 64 of the 1856 Rules. Section 88 of the County Court Act 1888 reenacted section 79 of the 1846 Act with minor changes. Order IX of the County Court Rules 1889 provided for the plaintiff serving a notice of discontinuance and for the defendant obtaining an order for costs. Order IX rule 1 of the 1903 Rules amended the 1889 version to enable the defendant to tax his costs without order of the court. In 1914, the Rule was again amended to provided that discontinuance should not be a defence to a subsequent action so that in substance the Rule by then had achieved its modern form. There were further amendments in 1936, when the provisions became Order 18, and in 1981.

In summary therefore, the County Court provision giving the judge a discretionary power to nonsuit a party after hearing the evidence instead of entering judgment for the other party has existed in substantially the same form since 1846: discontinuance was introduced in substance in 1856, was first called "discontinuance" in 1875 and reached substantially its modern form in 1914. By 1914 at the latest, but probably by 1856 or 1875, the County Court Rules, in providing for discontinuance, made the preservation of a general common law right to be nonsuited unnecessary.

In saying in Clack that "at any time up to verdict, if the plaintiff elected to be nonsuited he was entitled to it as of right, and the court had no discretion to refuse", Willmer L.J. referred to two cases which antedated the introduction into the County Court Rules of provisions for discontinuance. Willmer L.J. also said at p. 216:

"Since the introduction of the 1883 Rules of the Supreme Court, the High Court retains no power to enter a nonsuit: see Fox v. Star Newspaper . But in the county court the power survives, and is specifically preserved by Order 23, r. 3, of the County Court Rules, 1936."

In so far as this passage is relied on in support of the submission that a general common law power survives in the County Court because of what is now Order 21 rule 2, I would respectfully disagree. In my view a discretionary power given to the court at the end of the evidence is at best neutral about whether a general common law right survives. I should incline to think that the inference was otherwise. In my judgment however, upon consideration it is clear that the reasoning in Fox must also apply to the County Court rules. In the High Court, discontinuance, fairly recently introduced when Fox was decided, had taken the place of nonsuit which had ceased to be available. In the County Court, there is discontinuance under Order 18 up to judgment and a discretionary power in the court to nonsuit when the evidence has been heard if the plaintiff fails to prove his claim. That covers the entire ground and there is no room for a general right to be nonsuited, which in my judgment upon the authority of Fox did not survive the introduction of rules for discontinuance. Discontinuance was not addressed in Clack and the critical statement about nonsuiting was obiter.

I sympathise with Mr Goodman on this subject, since he came to court expecting to submit that abuse of process did not apply to an unfettered common law right to choose to be nonsuited. He was in the end constrained, I think, to see the force of the court's suggestion that the common law right had not survived at all to be the subject of such a jurisdiction. It will be little comfort to him to know that I should, if it had been necessary, have had no hesitation in holding that the judge would have been right to hold that he had jurisdiction to refuse to allow the Brownings to choose to be nonsuited. It would have been nonsensical if the County Court had jurisdiction to strike out a notice of discontinuance as an abuse, as in my view upon House of Lords authority in Castahno it does, but had no jurisdiction to refuse to permit a party to be nonsuited when each course was in substance doing the same thing. The decision in Clack's case was that the court has a discretionary power to nonsuit once the evidence had been completed even though the party did not ask for it. That decision is not in question. The court did not consider questions of abuse of process. Doing so in the modern context, I would have had no doubt that the County Court judge did have jurisdiction to refuse to permit a party to be nonsuited. However, in the light of my view about the survival of the common law right to be nonsuited, the question does not arise.

For these reasons, I would hold that the judge reached the correct conclusions and dismiss the appeal.

LORD JUSTICE POTTER: I agree.

THE MASTER OF THE ROLLS: I also agree.

Order: Appeal dismissed. Section 18 costs order. Appellant's contribution assessed at nil. Legal Aid Taxation of appellant's costs. Leave to Appeal to House of Lords refused.