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
QUEEN'S BENCH DIVISION
CAMBRIDGE DISTRICT REGISTRY
(Mr Justice Douglas Brown)

		Royal Courts of Justice Strand London WC2 Thursday, 22nd March 2001

1. LORD JUSTICE KAY: On 6th July 1994 the claimant suffered serious injuries to his left ankle when he fell on a grassed area outside his home in Soham, Cambridgeshire. He claimed damages for personal injuries against the Hereward Housing Association Limited, the first defendants, and against East Cambridgeshire District Council, the second defendants, alleging against each that his accident was caused by breach of statutory duty under the Occupiers Liability Act 1957 and/or negligence.
2. By a judgment dated 29th April 1999, Douglas Brown J, sitting in the Royal Courts of Justice, rejected the claim against the first defendants but found that the second defendants were liable for the injuries suffered by the claimant. He concluded that the claimant was 30% to blame for his own accident and thus awarded him 70% of the damages he would otherwise have received.
3. The full figure for damages had been agreed during the hearing at £340,000. The judgment thus resulted in the second defendants being ordered to pay damages of £238,000.
4. The second defendant now appeals with permission against the finding of liability on its part. The first defendant is not involved in that decision and has played no part in the proceedings. It will, therefore, be convenient to refer to the second defendant in the remainder of this judgment as simply the defendant.
5. The claimant, who was accepted by the judge as an obviously honest witness, gave his account of his accident in a statement which he was to confirm on oath at the trial. That account reads:

"2. At about 7.00pm on Wednesday 6th July 1994 I was at home and a storm was brewing up.

3. My wife was busy cooking dinner and she asked me to go out to the car in order to close the sunroof.

4. I put my hard-soled house slippers on, which are moccasin type, and went out of the front door. It was overcast but quite light and it had just started to drizzle.

5. I turned left and began to walk across a grassed area towards my car. As I walked onto the grass and moved forward a couple of feet I suddenly felt a pain in my left ankle and I fell to the ground. I had turned my ankle over in a hole in the ground.

6. I cried out in pain and several people immediately came out of adjacent houses to give assistance.

7. It had by then started to rain quite hard so several people held umbrellas over me.

8. An ambulance was called which took approximately 20 minutes to arrive, during which time I remained lying on the grass.

9. As I was lying on the ground in agony I could see the sole of my foot almost pointing upwards due to the dislocation but I did not have the opportunity to really examine the ground to look closely at what had caused me to fall. I was aware of the hole very close by and I was aware that it was the hole which caused my accident. The pothole looked as if it was something that had developed over a period of time although I had never had cause to notice it before."

6. In cross-examination it was not suggested that the account was in any way untruthful. That was because at that stage the defendant had no reason to doubt the veracity of the account. The questions in cross-examination relevant to the accident went to three issues, the precise state of the ground at the time and whether there was a hole of the dimensions being suggested by the claimant, how that hole might have been caused, and to contributory negligence.
7. The claimant's wife gave evidence. Her statement had given no information about the happening of the accident. She was not asked questions about it. She did, however, give evidence about the extent of the hole in the grass. A witness, Mrs Lawrence, who was a neighbour, had given an account in a statement and she confirmed it on oath. Her account was:

"On the 6th July 1994 I was at home and I was in my kitchen washing up after tea. I was on my own in the kitchen.

I wouldn't say that it had been sunny that day but it hadn't rained all day. I seem to recall that as I was in the kitchen at around 6.45-6.50 pm, I noticed that the sky had darkened and I think that I heard a couple of claps of thunder and I remember the time because I was rushing to finish the washing up before 'Emmerdale Farm' came on TV at 7.00pm.

I noticed Gary Prentice come out of his front door. There is actually quite a large single-paned window in my kitchen and I could see Gary's front door clearly.

Gary walked out of this small front garden and walked to his left coming across the front of my house.

He walked onto the grass, 'cutting the corner' and I remember thinking that he was heading to his car.

I continued washing up and looked away for a moment and then I heard a loud cry so I looked up and saw Gary laying on the ground, writhing around, and obviously in pain. He was about 5-6 feet from the pavement, completely on the grass, laying roughly parallel to the path.

I dashed out of my front door and ran over to him and as I did so he continued to cry out loudly in pain.

I took one look at his ankle and saw that the foot was completely twisted over and I knew immediately that Gary had sustained a serious injury. He was lying just beyond, near a large pot-hole."

8. The judge accepted, not surprisingly since it was not challenged, the claimant's account of his accident. As indicated, he concluded that both negligence on the part of the defendant and contributory negligence were made out and apportioned liability as 70 per cent to 30 per cent in favour of the applicant.
9. No criticism at all is made of the judgment and there would have been no appeal but for subsequent events. Those events are described in an affidavit sworn on behalf of the defendant by its solicitor, Mr. Coppin. The relevant paragraphs are 13 to 15 which I read:

"13. A report of the outcome of the trial appeared in the Cambridge Evening News, a copy of which appears in the bundle.

14. Following that report I was informed by Miss Cuthbert who is employed by the second defendant that some local residents had contacted the first defendant to inform it that the accident had not in fact happened as the claimant had maintained. The first defendant referred these residents to the second defendant which in turn notified its insurers. Thus the first time that the second defendant learned that the claimant might have given a false account of the accident was on or about the 30th April 1999. When I was informed of the possibility that a false account had been given, I arranged for the Collinsons to be contacted in order to carry out an initial assessment of the weight that could be attached to their evidence. The allegations being made were clearly extremely serious in their effect and it was therefore important to ensure that the information we had received was more than just 'gossip'. They were sent initial statements on 20th May and these were returned at the end of May. On the strength of these statements, I decided that there was sufficient merit in pursuing the investigations further, reported to my insurance clients and handed the matter over to them for a full investigation. In particular, it was necessary to ascertain not only the substance and nature of the further evidence that might be available but also whether it was credible.

15. During July 1999 in the course of their investigations the second defendant's insurers obtained witness statements from 7 local residents..."

10. All of those who made witness statements have sworn affidavits. It is in the light of that evidence that it is contended that the judgment cannot be allowed to stand and that there ought to be a retrial. It is necessary therefore for the defendant to obtain the permission from this court to rely upon that evidence. That application is critical to the outcome of this appeal.
11. It is necessary to look in a little detail at the evidence upon which the defendant wishes to rely. Three of the affidavits come from three members of the family, the Collinsons, referred to by the solicitor in his affidavit, who live at 46, The Causeway, next door but one to the claimant and his wife, who live at No. 44.
12. Sarah Collinson is the daughter of the family. She was at the relevant time either 13 or 14. She is now older and is employed as a care assistant. She had been friendly with the claimant's stepchildren, Hayley and David Ward, David at the time being 13. In her affidavit she claims to have witnessed the accident. Her account, as it appears in that affidavit, is as follows:

"4. From memory, I would say I had been playing with Haley and David for around an hour or so on the evening of 6 July 1994 and as far as I recall, the three of us had been mainly standing around outside number 44, on the square of grass where Gary Prentice injured himself. I think Gary Prentice's daughter, Rebecca, would have been with us and she was around 1 or 2 years old at that time, and possibly Diane Lawrence's daughter, Sonia, may have also been there and she was at that time the same age as me, 14. The group of us were not doing anything particular, just talking and mucking around.

5. It had not as far as I recall been raining that evening and the ground, including the grass square, was dry. I do not think it had rained earlier that day, but I am unsure whether it had rained the day before.

6. Sometime early that evening, before 7 pm, I recall seeing Greta Prentice, Gary's wife, standing in the doorway to number 44 The Causeway and Gary came up from behind her from inside the house and put his arms around her in an affectionate way. At that time, David, his stepson, was facing the side of the house (the wall) and he was playing with a football I believe. I then saw Gary come out of his front door to number 44, passing his wife Greta and he then walked up his garden path and turned left heading towards the square of grass. He was not wearing any shoes, nor socks, and he was dressed in shell-suit bottoms, but I do not recall what else he was wearing on top.

7. I then saw Gary basically creep around the right hand side of David, his stepson, who was still at that time facing the side wall of the house, and it looked like Gary was either trying to get a football or just playing a prank on David by scaring him. What then happened next I am not entirely clear about, but I saw Gary lunge at David from his right hand side, but in doing so Gary slipped and fell to the ground. Immediately a bone was sticking out of Gary's left ankle and everyone around was screaming in shock and at the time there were no adults in the area, just children. Gary's wife, Greta, may not have been in any position to see the incident, but I am not really sure and she may have still been stood in the doorway of her house, but from that position she would not have been able to see what had happened to Gary.

9. (sic) To try and get some help, myself and Hayley banged on the door to Diane Lawrence's house, which was close by at number 37. Her house overlooks the square of grass where Gary had fallen. Diane came to the door and I am not sure whether she then called the ambulance but when we first called at her house, Diane Lawrence was not seen looking out of any of her windows.

10. (sic) I ran to my house and got my dad to come and see what had happened and he immediately came out. When alerting my dad to what had happened, I recall that I was quite shocked at what I had seen."

13. Richard Collinson also made an affidavit. In his affidavit he confirms that his daughter summoned him to the claimant after the fall. He describes the events himself in the following terms:

" 4. Around 6pm or thereabouts, Sarah came running into the back garden saying that Gary Prentice had slipped and broken one of his ankles, and that he had specifically asked for me to help him. Sarah was visibly quite shocked and together we ran out of the house and to the square of grass in between 45 The Causeway and Gary's home at number 44. I immediately saw Gary Prentice lying on the floor with a broken ankle and the injury was quite serious, with a bone protruding from his ankle. Gary held my hand and was crying out in pain and I was trying to calm him down before the ambulance arrived as I knew it had been called.

5. I remained comforting Gary for quite a while, maybe up to half an hour, before the ambulance arrived and Gary was taken on board. I suggested to Gary's wife, Greta, who had been informed of the accident, that I accompany Gary to the hospital and it was agreed that I would go with Gary to the hospital which I did. Gary was taken to Addenbrookes Hospital in Cambridge.

6. When I first arrived at the point where Gary Prentice had been lying, I noticed that Gary was lying on the square of grass, at most a couple of metres from the side wall of his house and I would say he was 3 or 4 metres from the hole in the grassed area, which I understand Gary has blamed for falling and injuring his ankle.

7. Whilst I did not actually witness Gary Prentice's fall that evening, the distance from the hole in the ground to where he had fallen, coupled with the fact that when I reached him Gary was lying on his back with his legs facing away from the hole, certainly indicated to me that the point where he had fallen and injured his ankle was where he was actually lying."

14. Richard Collinson also speaks of conversations with the claimant in the days that followed his accident. At paragraph 11 he says:

"On numerous occasions following the accident, Gary Prentice personally said to me words to the effect that 'you could not believe something like this could have happened through doing something silly like chasing your son.' At no stage has Gary ever mentioned that he fell because of the hole in the ground and it has never as far as I can recall ever come up in conversation with him. On the basis of what Gary had continually told me, I took it that he had injured his ankle as a result of chasing his son and nothing else."

15. Pauline Collinson, the wife of Richard and mother of Sarah, does not claim to have witnessed the accident or to have seen the immediate consequences, but she describes conversations with the claimant and his wife. At paragraph 3 she says:

"Whilst I did not actually witness the incident in July 1994 when Gary Prentice injured his ankle, I have since spoken on more than one occasion to both Gary and his wife, Greta, about the incident. At no stage have either Gary or Greta ever mentioned that the cause of Gary's injury was the result of a fall attributed to a hole in the ground on the grassed area, but Gary and Greta had both told me that Gary had fallen because he was chasing his stepson, David, on the day in question and in the process of such, fell and broke his ankle. Gary remarked to me that he was surprised at the seriousness of his injury as a result of a simple slip on the grass."

16. Gary Prigg lives at 24, The Causeway. He knows the claimant as a neighbour. They have never been close but he asserts that they have never fallen out. He does not say that he saw the accident happen. He describes how he went to the claimant as he lay on the floor, saying that also there was another neighbour, David Fyson. The relevant paragraph of his statement, paragraph 6, reads:

"Whilst I did not see the actual incident that gave rise to the injury suffered by Gary Prentice, I can state that when I reached him after his fall, I was the first to reach him, along with David Fyson. When first reaching Gary Prentice, and as stated, Gary was lying on his front on the grassed area and he was positioned somewhere in the region of 3 metres from the hole in the ground on the grassed area that I am aware he has blamed for causing the injury. Also, I would say that the point he had fallen was about the same distance from the side wall to his house."

17. He also claims that, contrary to what the claimant had said, he was not wearing any socks or shoes.
18. David Fyson, mentioned by Gary Prigg, lives at 35, The Causeway. He is a witness who claims to have seen the accident actually happen. The relevant part of his statement starts at paragraph 5:

"My attention was drawn to Gary Prentice's house as I heard voices and looked up to see Gary Prentice chasing one of his two children around the front of his garden and they were both heading towards the grassed area that is located beside his house. From what I immediately saw when first hearing the noise of Gary chasing one of his children, Gary had chased the child from his front door, up the path leading to the house and then onto the public walkway directly in the front of his property and turned left.

6. Gary was chasing his child at great speed and Gary was making noises whilst doing so, in a playful tone. I watched as Gary chased his child onto the grassed area and at that time I looked away momentarily (a split second) as the situation was nothing that concerned me and within that time I looked down, heard a howl and recognised the voice to be Gary and then I heard a loud crack. I looked immediately up and saw Gary Prentice had fallen to the ground on the grassed area and from what I observed, he had just fallen and hit the ground. I then ran over to where Gary was lying and one of my neighbours (Gary Prigg) also ran over at the same time, as clearly Gary was in some pain. With Gary Prigg, I made efforts to help and comfort Gary Prentice and I saw that he had a compact fracture of one of his ankles and he was in severe pain."

19. That account is obviously different from that of the claimant, but, as is pointed out on behalf of the claimant, it is also markedly different from that of Sarah Collinson. Mr. Fyson, later in his affidavit, puts the fall as happening some three metres from the hole in which the claimant claimed that he fell.
20. Brian Fuller lives at 45, The Causeway. In his affidavit he gives an account of hearing the commotion after the accident and going outside and seeing the claimant lying on the ground. He says that the claimant was lying about ten feet away from the hole in which he was later to claim that he had tripped.
21. Gloria Jean Prigg lives at 43, The Causeway, next door to the claimant and his wife. She did not witness the accident or its aftermath. In her affidavit she speaks of conversations with the claimant and his wife, the wife being somebody who worked at the same place that she did. At paragraph 4 she says:

"The very next day after the accident took place, I was speaking to Greta Prentice and she told me that Gary had slipped over on the grassed area whilst chasing his stepson, David, and broken his ankle. In fact, after the incident took place, I had many conversations with both Greta and Gary Prentice and each time they stated that Gary had fallen and broken his ankle chasing David his stepson. Never was any mention made by either Gary or Greta of the fall being associated with a hole in the ground on the grassed area, nor was there any indication whatsoever of this. I am sure that had Gary broken his ankle as a result of falling in the hole in the ground, this would have been known by both Gary and his wife, especially as we were immediate neighbours and we spoke virtually every day. Also, I am sure that if a hole in the ground had been the cause of the accident, it would have been the talk of the street/area."

22. These potential witnesses all explain that they were unaware that any claim had been made until they read about the outcome of the case in the local paper. In their varying ways, they say that they have since made statements because they were shocked to learn that a claim had been made on a false basis.
23. The claimant and his wife strongly refute this fresh evidence, and three affidavits have been put before the court from the claimant, his wife and also from David Ward, his stepson, who, the statements to which I have referred allege, was involved in the accident. They categorically deny the relevant parts of the defendant's fresh evidence. It is, however, accepted that David Ward was present, even though that fact did not emerge at trial. That is not itself in any way sinister but does mean, when an account is being put forward suggesting that he was involved that he was indeed present at the time.
24. It is convenient to consider the correct approach to the admission of fresh evidence before turning to the arguments advanced on each side in this case. This was an appeal brought after the coming into force of the Civil Procedure Rules but before the coming into force of the new appeal rules to be found in Part 52. The position in such circumstances has been considered in a number of cases by this court and was summarised by Morritt LJ in Banks v Cox (unreported, judgment of 17th July 2000). At paragraph 39 of the judgment he says:

"It is convenient to start by considering the principles to be applied by this court on such an application. Those provisions were formally contained in Rules of the Supreme Court Order 59r.10(2). They provided that where, as here, there had been a trial on the merits, an application for leave to adduce fresh evidence on the hearing of the appeal had to show 'special grounds'. The special grounds came to be known as the rules in Ladd v Marshall after the decision of this court in the case of that name reported 1954 1 WLR 1489. Those rules provided that further evidence would be admitted on the hearing of an appeal only, and I quote from the headnote to that case,

'(1) if it is shown that the evidence could not have been obtained with reasonable diligence for use at the trial,

(2) if the further evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive, and

(3) if the evidence is such as is presumably to be believed.'

40. The relevant provisions are now to be found in the Civil Procedure Rules. In the case of appeals, or applications for permission therefore, made before 2nd May 2000 the relevant provision is rule 50.10(2) set out in the first schedule to the Civil Procedure Rules. That is in the same terms as Rules of Supreme Court order 59 r.10(2) but the power is to be exercised in accordance with the overriding objective set out in CPR Rule 1.1 and 1.2."

25. In the circumstances of this case, it does not seem to me that the overriding objective in any way alters the consideration that would have been relevant prior to the coming into force of the Civil Procedure Rules. There may be cases where that does effect it. It does not seem to me that this is one.
26. Accordingly, what the court has to consider in the first place is whether or not the various requirements set out in Ladd v Marshall are satisfied by this evidence. The first of those is the subject of argument, namely whether or not the evidence could have been obtained with reasonable diligence. The second is whether the evidence would probably have an important influence on the result of the case. Nobody suggests that, if this evidence was admitted, it could be said that it would not probably have an important influence on the case, whether or not it proved decisive. The third issue is whether the evidence is such as is presumably to be believed. Again, that is disputed.
27. It is convenient to take the third requirement first. On behalf of the defendant, Mr. Bassett argues that this is cogent evidence put forward by people with no apparent axe to grind in the matter, all of whom have a connection with the defendant and a connection which has not evinced any apparent hostility in the past, and that they now come forward and give an account which is totally different in its varying ways to the account that is put forward by the appellant. He says that in those circumstances the court ought to accept that the evidence is evidence which is capable of being believed and ought to be properly considered by the court before being rejected.
28. Mr. Lynagh QC on behalf of the claimant argues that the evidence lack the necessary cogency. He points, firstly, to the fact that the accounts given by the two witnesses who claim to have seen the accident occur differ from one another. He also points to a number of minor discrepancies, as he recognises them to be, between the account of other witnesses as to exactly where the claimant was in relation to the hole when he was lying on the ground, whether he was lying on his front or his back, whether his feet were facing towards the hole or away from it. He submits that when one analyses the evidence in any detail, one has to say that those features so weaken the evidence that the court ought not to conclude that it is evidence which is likely to be believed.
29. Those arguments have to be seen in the light of the fact that the witnesses were first being asked to give an account of these events five years after the claimant's undoubted accident. Matters of detail in those circumstances are likely to be forgotten. What is not likely to be forgotten is whether or not the accident did indeed occur in the way that was being suggested. For my part, I have no hesitation at all in concluding that this evidence has sufficient cogency as to require, if the other conditions are met, that the matter should be referred back for retrial.
30. So it is that one turns to what has been the principal issue in this case, and that is whether or not the defendant could, with reasonable diligence, have found this evidence, and therefore been in a position to make use of it, prior to the trial. On behalf of the claimant Mr. Bassett points to a number of factors. He says, first of all, that here was an account being put forward on behalf of the claimant, which had no feature to it suggesting that the account was not true. He observes that there was no one present at the time representing the interests of the defendant, who could have alerted the defendant to the fact that others might have seen what was going on. He points to the fact that the claimant had on a number of occasions given an account of the accident and that there was an apparent consistency in the account throughout. He points to the fact that there was a witness, Mrs Lawrence, who was in a good position, so she said, to see what was going on, who gave an apparently detailed account which supported very largely the claimant's version of what occurred. In those circumstances, he submits that it is wholly unreasonable to suggest that a defendant, or as is more pertinently the case the insurers of the defendant, ought immediately to treat the account as one that may well not be truth and so to start some sort of investigation. He submits that in those circumstances this is evidence which has only emerged at a very late stage after the judgment, about which realistically the defendant could have known nothing in advance, and that accordingly it satisfies the first requirement of the rule in Ladd v Marshall.
31. Mr. Lynagh submits that that will not do. He points to the fact that the rule refers, not to evidence that should have been obtained, but to evidence that could have been obtained. He submits that, in the circumstances of this case, some investigation ought to have been made by the defendant or its insurers, and that that investigation inevitably would have revealed the possibility of the existence of this evidence and the likelihood that it could be called. He points to the fact that the defendant did not accept in its entirety the factual case put forward by the claimant. It is right that one of the matters upon which evidence was called by the defendant related to the precise nature of the ground at the relevant time. A witness, Mr. Howard, was called – he worked for the defendant and was responsible for the maintenance of this area – who gave evidence that he had never seen a hole of the dimensions described by the claimant and his wife and depicted in photographs that were taken either by one of them or on his behalf. It was clearly his contention that, whilst there might have been holes in which the claimant could have put his foot, he had certainly never put his foot in the sort of hole being claimed by the claimant. In those circumstances, Mr. Lynagh contends that, since the question of whether there was a hole and, if so, the nature of that hole was being considered, the duty was upon the defendant or its insurers to carry out proper investigations to see whether any witness in the area could be found who could throw light upon that issue. That, he says, could have been done, either by some sort of written inquiry of those in the immediate neighbourhood or, more probably, by an investigating officer of the insurers going round the various neighbours and asking them whether they could assist. If that exercise had been carried out he submits that, not only would inevitably there have been answers provided as to the dimensions and existence of the hole, but also the fact that there were different accounts being given of the happening of the accident would have emerged. In those circumstances, he submits that the relevant limb of the rule is not met.
32. For my part, I find that approach to be unrealistic. It would mean that any insurance company, met with a claim, was under a duty to start from the proposition that the account that they had been given was a false account and to investigate to see whether that was so. That would have a number of consequences. First, it would mean that the extent of the investigation of any claim of any kind would inevitably be greatly increased, often with no realistic prospect that anything would be found, and, secondly, one would anticipate, with annoyance to the person making the claim that the insurers would seem to be going around knocking on the doors of his neighbours and no doubt friends and inviting them to put forward a different version. I do not believe that there is any such duty or requirement on the insurers in those circumstances, and I accept that they are entitled, unless something suggests to the contrary, to work on the basis that the person putting forward a claim is putting forward a genuine and honest claim. If something in the inquiry alerts them to the fact that that is not so, then obviously the position changes. There was nothing in this case that I can see that was likely to alert them at all. They had on behalf of the defendant not merely his account but also an account from an apparently honest and respectable witness supporting it. It seems to me that it would be wrong to suggest that there was some requirement upon them to make the investigations that are suggested. For these reasons I do not consider that this is evidence that could, with reasonable diligence, have been discovered by the defendant, and therefore I have no hesitation in concluding that this evidence satisfies the three limbs of the rule in Ladd v Marshall. On that basis I would admit the evidence and I would readily conclude that the situation, having regard to the nature of the evidence which I have set out in some detail, requires that there should be a retrial of the issue.
33. Towards the end of argument the question arose as to whether or not the position was different in a case where a party was coming along saying: "I have discovered a witness who could add to my case as I presented it", compared with a case such as that here, where a party is saying: "I have now discovered information which suggests that the very claim that the court accepted was false and fraudulently made." If that contention is being made - one of course is not prejudging what might be the conclusion after a retrial - it seems to me to be the case that the court's approach has to be somewhat different from that which would otherwise be the case where there is simply the discovery of some further piece of evidence. In Skone v Skone [1971] 1 WLR 812 the House of Lords considered a case relating to a divorce, where evidence had come to light of love letters allegedly written by the co-respondent who had been believed at the divorce hearing. Without needing to refer to the specific passages in that judgment, it is manifest from what the House of Lords were saying in that case that different considerations apply in circumstances such as these. In particular, the third finding in the headnote is:

"That, accordingly, in the circumstances a new trial would be ordered for a strong prima facie case of wilful deception of the court was disclosed."

34. I think that there are matters here that merit consideration afresh as to whether or not the judge on the last case was wilfully deceived. Accordingly, the interests of justice would require that these matters are retried. For these reasons I would admit this evidence and I would allow the appeal.
35. LORD JUSTICE MUMMERY: I agree.
36. LORD JUSTICE ALDOUS: I also agree.
Order: Appeal allowed; new trial ordered; order set aside apart from paragraph 3; costs here and below to be costs in the new trial; liberty to apply in relation to section 11; freezing order to continue until judgment in the new trial. (Order not part of the judgment of the court)