England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Lloyd)

		Royal Courts of Justice Strand London WC2
		10th February 2000

1. LORD JUSTICE NOURSE: This is the judgment of the court.
2. This is a passing off action which was dismissed by Mr Justice Lloyd on 30th July 1999 after an expedited trial extending over rather more than five days. The claimant is HFC Bank plc. The essence of its claim in the action was that the name of the defendant, HSBC Bank plc, formerly called Midland Bank plc, was confusingly similar to its own.
3. The judge refused the claimant permission to appeal. An application was then made to this court. On 15th October permission was refused by Lord Justice Mummery on consideration of the documents. But at an oral hearing before Lords Justices Chadwick and May on 25th November permission was granted and directions were given, in particular and at the request of the claimant, for an expedited hearing of the appeal by the middle of this month. Counsel for the claimant gave an estimate of three days, but the court directed that the hearing was to be completed in two days.
4. Partly, perhaps, because of that direction it was possible for the appeal to be heard before us on Monday and Tuesday, 17th and 18th January. At the end of the second day leading counsel for the claimant had not finished his reply and we directed that his submissions should be completed in writing. These were received by the court on Friday, 21st January. At the close of the argument we announced that we would take time to consider our judgments and put them in writing.
5. It being a matter of some public interest that the parties should know where they stood and the appeal having been expedited, we were naturally concerned to give judgment as soon as practicable. Inevitably, that involved the preparation of our judgments taking priority over the preparation of others in cases which had been argued earlier but which were not of the same degree of urgency. Had it not been that the appeal was mainly concerned with issues of fact on which there was a vast amount of evidence, especially of alleged confusion, we would no doubt have been able to complete the preparation of our judgments earlier than we did.
6. In any event, on Monday of this week, 7th February, each of us having prepared a reasoned judgment, counsel's clerks were informed that judgment would be given this morning and, in the usual way, that copies of the draft judgments would be made available to counsel at midday on Tuesday. Notice of the judgment was duly published in Tuesday's daily cause list.
7. Early on Tuesday morning my clerk was informed by the claimant's solicitors that the parties had come to terms overnight and wished that the appeal should be dismissed. That having been confirmed by the defendant's solicitors and a draft order submitted, our draft judgments were not made available to counsel at midday and the matter was subsequently relisted for mention this morning. In the meantime I had written to leading counsel on each side, informing them that no order would be made before this morning and that we would expect to be informed precisely when the possibility of the proceedings being settled was first mooted and, if that gave an opportunity for the court to be informed of the possibility, why it was not taken.
8. Each leading counsel, having taken instructions, has since replied in writing and we are grateful to them for having done so. They have given us further information this morning. It appears that the position is as follows. On Monday, 31st January a telephone call was made by the defendant to the claimant's holding company in Chicago. The purport of that telephone conversation was to ask whether it would be worthwhile to have a meeting between the parties. On 3rd February it was agreed that there should be a meeting between the holding companies of each of the parties in Chicago on Monday of this week, 7th February. That meeting took place and the result of it was that at about seven o'clock Chicago time, that is about one o'clock on Tuesday morning our time, a compromise agreement was arrived at.
9. We wish to make it clear that the court will always encourage the parties to settle their differences even at a late stage and nothing we say is intended to detract from that. What has concerned us is that we were not informed of the settlement until after notice of the judgment was given.
10. As I have said, we have been given further information by counsel this morning, in particular with reference to when their respective instructing solicitors first knew that there might be a settlement. In the result it has become clear that it was not until 3rd February that either firm of solicitors knew that there was going to be a meeting on 7th February and it may be that one of the firms did not know even on that date that the meeting was to take place. But we are not concerned only with the parties' legal advisers. We are concerned with the parties themselves. It was, as I shall show, their duty to inform the court of the possibility of a settlement at any rate on 3rd February, when the meeting had been arranged.
11. The parties and their legal advisers have apologised to the court through counsel. Their apologies having been accepted, we propose to take no further action in this case beyond stating, with the concurrence of the Master of the Rolls, that, in a case where judgment has been reserved, it is the duty of the parties and their professional advisers to inform the court immediately they become aware of any development which may make it unnecessary for judgment to be delivered. The foundation of that duty is not the personal inconvenience caused to the members of the court, acute though that may be. It is the requirement, which should be obvious to all, that the court's resources should be properly and efficiently deployed. These observations apply just as much to cases where judgment is reserved at first instance as to cases in which judgment is reserved in this court.
12. While that duty has always existed, it is now expressly imposed by Part 1 of the Civil Procedure Rules. So far as material, rule 1.1 of that part provides:

"(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2)Dealing with a case justly includes, so far as is practicable ...

(e)allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."

13. Rule 1.2 provides that the court must seek to give effect to the overriding objective. Rule 1.3 provides:

"The parties are required to help the court to further the overriding objective."

14. It is our view that the duty to inform the court that there was a possibility of settlement arose at any rate on 3rd February and a communication to the court ought then to have been made. As I have said, we propose to take no further action in this case. We will make a consent order for the dismissal of the appeal in the terms of the agreed minute which has been placed before the court, subject to one minor amendment which has been mentioned.

Order:consent order for the dismissal of the appeal made in terms of agreed minute.