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
(Mr Justice Gray)

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th October 2002

Lord Justice Potter:

INTRODUCTION

1. This is an appeal from the judgment of Gray J delivered on 10 September 2001 in the course of an action for malicious falsehood brought by the claimant Dennis Tanner against Blue Print Books Limited and its director, Mr Peter Filby (to whom I shall refer collectively as “the defendants”, without distinction save where the context demands). The issue before the judge, which had been ordered to be tried by Mackay J on 11 May 2001, was whether the claimant and the defendant had entered into a concluded and legally binding agreement to settle the action. The judge held that such an agreement had been concluded inter alia in terms of the Schedule to his order dated 10 September 2001 in the following terms:

“1. The Claimant hereby undertakes (on behalf of himself and any entity, corporate, personal or otherwise in which he has any financial interest or over which he has any control) not to print, publish, distribute or otherwise communicate any article concerning the Defendants or any of their products.

2. The Defendants hereby undertake (on behalf of themselves and any entity, corporate, personal or otherwise in which they have any financial interest or over which they have any control) not to print, publish, distribute or otherwise communicate any article concerning the Claimant or any of his products.”

THE BACKGROUND HISTORY

2. The proceedings were proceedings brought by the claimant who (as the judge put it) trades in kit cars either under his own name, or under the style of Pilgrim Cars or perhaps through a limited company of that name. One such car is called the Sumo. The claimant also owns a trade magazine called Kit Car. The defendants own and publish another magazine for kit car enthusiasts called Which Kit. The two magazines are in competition with each other. Much of the content of Which Kit consists of publication of lengthy letters from readers, by way of complaint or criticism concerning kit car products, followed by a paragraph or so of editorial comment upon such letters. In September 1998, Which Kit published a reader’s letter in relation on which the defendants commented to the following effect:

“It would not be sensible to build a Sumo with Chevy V8 power, as the chassis simply isn’t up to it.”

The claimant objected to what was said and in November 1998 he started proceedings against the defendants for damages for malicious falsehood and an injunction restraining the defendants from publishing:

“The said or any other mis-statements reflecting adversely on the Plaintiff’s products.”

3. The proceedings became very acrimonious. On 3 November 2000 solicitors acting for the claimant wrote proposing a ‘drop hands’ settlement and stating:

“The issues raised by our client now date back some time and, to an extent, time has healed the damage done by the article. Needless to say our client will also expect an undertaking from your client that he would not publish any articles about Sumo. We feel that an undertaking couched in these terms would avoid any future argument and no doubt in view of the history of this matter your client would not wish to risk any further disputes of this nature in any event.”

4. That offer was not accepted. Instead the publication of critical matter in Which Kit intensified. In the November 2000, January 2001 and February 2001 editions there appeared a prominent notice in the form of a black-edged advertisement inviting letters from owners of Pilgrim Sumos ‘particularly in respect of any which have suffered problems’. It stated that Which Kit was conducting a unique survey and would like to hear of readers’ experiences, good or bad. On 1 February 2001 Mr Filby wrote a letter to the claimant in which he referred to suffering and expense which he had endured because of the claimant’s ‘evil claptrap and devious ways’ and stating that he had now decided it was time to fight back. The letter listed a number of steps which the defendants intended to take to investigate and expose the Sumo’s faults in future issues of Which Kit including ‘exposure of absolutely all other relevant matters that come to our attention concerning Pilgrim Cars’. It said that the March issue of Which Kit would be:

“... just the start of a whole series of features exposing your sub-standard products and unprofessional attitude to business overall. It is time the kit car buying public is made aware of what has been going on at Pilgrim Cars.”

The letter observed that the effect on the claimant’s business might be devastating and went on to propose that the claimant drop the proceedings, pay the defendants their costs to date and make another payment of no relevance to the case. The letter concluded:

“I suggest you do something about this very soon before too much damage has been inflicted on your business. I am still prepared to talk to you and try to reach a settlement but will still expect you to agree to the terms above. Please note that any settlement of your claim must [be] on terms incorporated in a formal written court order that my solicitors will prepare.”

5. Following an unsuccessful application by the claimant for an interim injunction, at which the parties were urged by the court to settle their differences, the claimant wrote a letter dated 14 February 2001 resurrecting negotiations for a settlement on the basis that there should be no mention at all of him or his products in the columns of the defendants’ magazine.
6. Against that background, on 27 February 2001, a meeting took place which was attended by the claimant, Mr Filby and the solicitor acting for the defendants, Mr Marwick, at which terms of possible settlement were discussed but which did not result in agreement. The discussions related to the offer of the defendants, noted by Mr Marwick as:

“Client offered not to publish or write any article about Den Tanner or his products …. £15,000 towards costs.”

The oral evidence of the parties as to the detailed course of the negotiations was at odds and the judge made no specific findings in that regard. As he made clear, the crucial oral discussions took place later on 10 March 2001 in telephone conversations between the claimant and Mr Marwick during which it was the case for both parties that agreement was reached which inter alia involved the defendants’ undertaking not to publish any article concerning the claimant or his products against a payment of £9,500 by the claimant in respect of costs.

7. Again, there was conflicting evidence as to what was said in those conversations as to which the judge made no specific findings. However, he placed reliance upon a manuscript note made by the claimant as to what was agreed. The note was headed “Agreed Sat 10/3/01 11.30” and it was also headed “All encompassing”. It continued by setting out what the judge said appeared to be the terms of the agreement for settlement of the action as follows:

“(a) claims dismissed

(b) claimant to pay £9500 to Def costs. The Defs relinquish claim for further costs

(c) trial vacated and removed from court record

(d) claimant and through agents servants companies etc hereby undertakes not to print, pub, distribute any articles (expand to be fully explicit) concerning Defendants or their Products.

(e) Defendants ditto above.”

8. Following some text which is not material for the purposes of this appeal the note went on to record as follows:

“Marwick warned that above is verbally constituted contract. Case closed. No going back and that if I tried to go back he would sue on behalf of Filby. Said he would FAX above tomorrow (Sunday). He suggested I run it past my lawyer on Monday. He said he would feel more comfortable if I were to take advice about what he was going to send. Marwick added Deal Done we can both get rid of files and there was no need for me to comply with order of Eady dated 2/3/01. Said I can take W/E off.”

9. On Sunday 11 March 2001 Mr Marwick produced a draft consent order which was faxed to Mr Tanner together with a letter to go before the court. The consent order provided that the claimant’s claims were to be dismissed, the claimant was to pay to the defendants the sum of £9,500 towards their costs within seven days of the date of the order, the defendants relinquishing their claim to payment of any further costs. The hearing of the trial was to be vacated and the claim removed from the court record. The preamble stated that the parties had agreed terms of settlement in terms of the schedule annexed to the order which provided for undertakings in the same terms as the schedule attached to the order of Gray J as quoted above at paragraph 1 above.
10. The draft letter to the court stated:

“We are writing to confirm that the above claim has been settled. You may, therefore, vacate the Trial of this claim. The consent order settling this order will be lodged shortly.”

The copy of the consent order and the letter to the court were both signed in the name of the defendant’s solicitors and each bore a space for the signature by the claimant.

11. The solicitors’ letter enclosing the consent order and the letter for the court stated:

“Further to the settlement of this claim, we enclose the Consent Order containing the terms of the settlement. Kindly endorse the hard copy of the order and return it to this firm. We will then lodge the order at court for approval and sealing by the Court.

We have also written to the Court informing them that this Claim has been settled and the Trial may be vacated. Can you please write to the Court in similar terms.”

12. So far as the position stood at that stage the judge summarised the material parts of the oral evidence of the parties as follows:

As to the claimant, he said:

“The evidence of Mr Tanner as to the discussions on the 11^th March was that he told Mr Marwick that he felt that the terms looked all-encompassing but that he would feel more comfortable if his solicitor took a look with a view to the expansion of the terms if he felt that they were not fully all-encompassing.”

13. Although not referred to by the judge, the claimant faxed a letter to Mr Marwick on 11 March which, with reference to the draft consent order, stated:

“The only point I wish to clarify is that we agreed that the terms annexed to the order are intended to be ‘all encompassing’. That is to say that they are intended to prevent either party writing about the other in either good or bad terms. ….

This was agreed between us this morning and my setting down this understanding at this point is to help in the event that the terms agreed become the subject to argument in and of themselves.”

He added later in the letter:

“In effect I have procured the total silence of the Defendants concerning me and my products and hence procured a lifting of the threat contained in your clients letter dated 01/02/01.”

14. As to the defendants the judge said of Mr Marwick’s evidence:

“Mr Marwick … said … they were agreed between them that there was firm agreement and that the bottom line of that agreement was contained in the consent order and the schedule thereto. Mr Marwick said that he suggested to Mr Tanner that they should have a side agreement whereby Mr Tanner could go back to his solicitors to cast an eye over the agreement and Mr Tanner could, according to Mr Marwick’s evidence, come back to improve or tidy up the form of wording. Mr Marwick accepted in cross-examination that he may in the course of this conversation have used the word all-encompassing. But that was, according to Mr Marwick, in relation to any future articles to be published by Mr Filby …..”

15. On 11 March 2001, the claimant countersigned the letter for the court which confirmed that the claim had been settled. However, he did not sign the copy of the consent order at that stage (as the judge erroneously stated in his judgment). On 12 March 2001, the claimant wrote his own letter to the Clerk of the Lists stating:

“An agreement was reached on Saturday 10/03/01, the terms of which have resolved my Claim.

A Consent Order laying out the settlement terms shall be sent to you shortly by … [the] solicitors for the defendants ….”

16. So far as the consent order was concerned, he wrote the same day to Mr Marwick saying:

“I have shown the proposed consent Order to Coole & Haddock [the claimant’s solicitors]. They suggested that the ‘all encompassing’ terms agreed to should be made more explicit. In particular they suggest the word ‘article’ in terms 4 and 5 be expanded to read ‘article, letter, advertisement or notice’.

If you would be so kind as to make this alteration I shall be pleased to sign the Consent Order for sealing by the Court.”

17. Thereafter, no consent order was signed or agreed. On 15 March 2001 Mr Marwick wrote stating that a binding agreement had been reached in respect of the settlement of the claim and referred to:

“The collateral agreement reached [which] provides for the parties to negotiate the possible expansion of the words contained within the undertaking …

… we confirm that our clients are prepared to agree in principle to the inclusion of the words “Advertisement” and “Notice” in the undertakings subject to suitable additional terms being agreed.”

18. On 20 March, the claimant wrote seeking to make it clear that he was not seeking any amendment to the agreement which had been reached on 10 March 2001 but that he was merely seeking ‘to have the written form of said agreement drafted to more precisely reflect that verbal agreement’.
19. By letter of 28 March Mr Marwick reiterated his clients’ position that

“After the claim was settled it was further agreed as a collateral or “side” agreement that you may seek the advice of your solicitors in respect of the wording of the undertakings. Subject to their advice, you were entitled to put forward reasonable proposals to expand or improve the wording of the undertakings and for our consideration.”

THE JUDGE’S DECISION

20. In the light of those contentions the judge observed that three questions required to be decided. First, whether there was concluded on 11 March 2001 an agreement for the settlement of the proceedings and if so, what were the terms of any such agreement. Second, what if any, contractual entitlement did the claimant have to vary or modify any such agreement as might have been arrived at on 11 March. Third, if he had any such entitlement, was the variation or modification sought by the claimant within that contractual entitlement.
21. On the first question the judge concluded that it was clear that on 11 March agreement was arrived at to settle the action upon the terms that the defendant agreed only not to print, publish, distribute etc, any article concerning the claimant or any of his products (and, by implication, that there was no undertaking or obligation in respect of readers’ letters, notices or advertisements). He said:

“The reason why I have come to the conclusion that that is the clear answer to the first question posed is that that is what the schedule to the consent order clearly states. Moreover, it is wholly consistent, in my view, with the note made by Mr Tanner of his discussions with Mr Marwick on the morning of the 10^th March 2001. I read sub-paragraph (d) of the list of agreed points as containing and containing only an undertaking not to publish any further article about Mr Tanner or his products. That, it is to be noted, is what Mr Filby had indicated he was prepared to do at the earlier meeting on 27^th February 2001.”

22. As to the second question, the judge found that the claimant had no contractual entitlement to a variation. He said:

“It appears to me that Mr Marwick’s evidence shadows closely the note which was made by Mr Tanner of the discussion on the 10^th March, which as I have stated records the suggestion on the part of Mr Marwick that Mr Tanner should run the agreement past his lawyer. I accept that Mr Marwick is correct when he says in his evidence that he did not make any contractual concessions, whether on the 10^th March or on the 11^th March. The furthest he was prepared to go was, I accept, to listen on behalf of his clients to any proposals which might be forthcoming from Mr Tanner’s solicitors which might clarify what was contained within the undertaking to be given by Mr Filby. In other words, I accept that this was an agreement by Mr Marwick to negotiate further on any suggestions forthcoming from Mr Tanner’s solicitors. He was not, in my judgment, committing Mr Filby to accept any contractual variations.

23. The judge observed that, on that basis, the third of the questions posed did not arise for decision. However, he added that the addition that was ultimately proposed by Mr Tanner, namely that to the word ‘articles’ should be added the words ‘advertisements, readers’ letters or notices’, appeared to him to go beyond clarification and materially to alter the substance of what had already been agreed.
24. While the judge did not articulate his reasoning in that respect, it seems clear that it was his own view that the word ‘article’ was not in its ordinary meaning sufficiently wide in scope to include letters, advertisements, or notices. While he did not expressly say so, he appears to have adopted the view stated in the written statement of Mr Filby in the proceedings before him that:

“My understanding of the word is that it means anything written by the magazine, expressing the views of the magazine. A letter does not express the magazine’s views in just the same way as a letter to ‘The Times’ does not represent editorial views.”

THE SUBMISSIONS OF THE PARTIES

25. As already indicated, it appears that the questions which the judge asked himself in elaboration of the issue as ordered to be tried and the subsequent structure of his judgment resulted from the submission of both parties that a compromise had in fact been reached on 10 March. To quote from the skeleton argument of the claimant below (where he appeared in person):

“12. The present argument concerns the wording of an undertaking that PF has agreed to make. PF maintains that he agreed not [to] publish ‘articles’ about the ‘Claimant’s products’. PF says that ‘articles’ do not include letters or adverts and that the ‘Claimant’s products’ do not include those of Pilgrim Cars Limited nor those of DT’s other companies or businesses.

13. PF has stated that DT’s requirements for the expansion of the wording to fill these ‘loopholes’ goes ‘way beyond the contemplation of the parties at the time the offer was made’. DT does not believe this to be so. DT believes [the] required expansions represent exactly what was agreed.”

The claimant went on to argue that, against the background of the dispute, the word ‘article’ in fact comprehended the words now sought to be added, which words ‘merely clarified and rendered more explicit the word ‘article’.

26. The defendants’ written submissions ran as follows:

“9. …. It appears that the parties agree that they entered into a legally binding agreement that was ‘absolute’ and that this agreement was reached on (or before) 11.3.01.

10. It is D’s solicitors’ evidence that the Consent Order as sent to C reflected the agreement between the parties.

11. C’s letter in response of 11.3.01 does not challenge the use of the word ‘article’, but simply seeks clarification that the words were ‘all encompassing’. It is advice C received after the agreement was reached that led to an attempted re-formulation of the words to clarify the intention of the parties.

12. Although a ‘collateral’ agreement to ‘expand or improve’ the wording of the agreement was almost guaranteed to lead to confusion, it did not alter the fact that agreement had already been reached.

13. The court is therefore asked to conclude that agreement was reached as reflected in the terms of the draft Consent Order.”

27. It is clear that the judge accepted and followed the pattern of the defendants’ submissions in his judgment.
28. In granting permission to appeal in this case, Waller LJ observed that he was troubled about the finding of the judge that there was a compromise reached on 11 March in terms of the consent order and that it seemed more likely that, if a binding agreement was reached, it was likely to have been reached orally on 10 March, the question then being whether the consent order accurately reflected what was agreed. Alternatively, as submitted on the claimant’s behalf by Mr da Silva, who represented the claimant on the application before Waller LJ, it was arguable that the agreement reached on 10 March left the final negotiation of the terminology to be settled in the form of a consent order yet to be, and in the event never finally, agreed.
29. Following those observations, Mr da Silva’s primary argument in this court has involved a close analysis of the documents in the case in order to argue that, on the face of things, no agreement was ever reached for the reasons summarised by Waller LJ. I do not think that that is a legitimate argument upon appeal, bearing in mind the way matters proceeded before the judge. First, he was not invited simply to decide the issue upon the documents and heard oral evidence. Although the contemporary notes of the parties involved in the negotiation, namely the claimant and Mr Marwick, were referred to by them and put in evidence, they were not the subject of any agreement as to their accuracy. Second, neither party raised the argument below. Both asserted that agreement had been reached, the dispute simply relating to the effect or extent of the undertaking on the defendants’ part. The judge was in error when he observed that the claimant had signed the copy of the consent order. However, he based his judgment upon his clear conclusion that there was an agreement to settle on 11 March, the terms of which were contained (in the sense of accurately reflected) in the schedule drafted by Mr Marwick, which the judge found to be consistent with Mr Tanner’s note at sub-paragraph (d) of the discussions on the morning of 10 March 2001. If there had been advanced to the judge an argument that no agreement had been reached as set out in the schedule, or that, at the time of agreement on 11 March, it was ‘subject to contract’ in the sense of reduction into writing for final approval by the claimant’s solicitor, his whole approach to the effect of the evidence and the structure of his judgment would have been different.
30. Mr da Silva advanced an alternative argument similar to the claimant’s submission below, namely that the word ‘article’ employed in the agreement between the parties should not suffer the narrow construction adopted by the judge, but should rather be accorded a wide interpretation apt to include reader’s letters, notices or advertisements.
31. Mr Cheetham, for the defendants, has essentially repeated his submissions below and has supported the reasoning of the conclusions of the judge. He also made application at the outset of the appeal to adduce by way of further evidence certain handwritten attendance notes of Mr Marwick which were omitted by oversight from the trial bundle placed before the judge. In the supporting statement of the defendants’ solicitor, the reason for the oversight is said to be that, in the short time available to them between the receipt of their instructions and the hearing, their attention and that of counsel was ‘almost entirely on the trial bundle and we did not have time to look at the several other files of papers given to me by the respondents’. So far as the significance of the notes is concerned, it is asserted that ‘they are directly relevant to the issues and would probably have had an influence on the judge’. In the light of the reasons given, we refused Mr Cheetham’s application stating that we would give reasons in the course of this judgment. Suffice it to say in that respect that not only is it by no means evident that the notes add any substance to what was before the judge, but the reasons advanced in support of the application, as I have quoted them above, fell woefully short of the requirements laid down in Ladd –v- Marshall [1954] 1 WLR 1489 at 1491 which, following the introduction of the Civil Procedure Rules, is still of persuasive authority in this court. Accordingly permission to introduce the notes was refused.

DISCUSSION

32. The judge made no finding of any specific agreement or understanding between the parties as to the meaning to be attached to the word ‘article’ in the course of their negotiations. Nor was there any evidence before him as to a trade or specialist meaning to be attached to the word. The judge’s only references to its ambit or definition were his observations that (a) there did not appear to be any evidence that the proposal to expand the word ‘article’ to include ‘letter, advertisement or notice’ had been proposed or discussed prior to the 12 March and (b) that it appeared to him that those words went beyond clarification, their effect being materially to alter the substance of what had already been agreed. Since the extent of the word ‘article’ appears to have been left open by the parties, the judge’s observations seem to have depended upon his own view as to its ordinary meaning or proper construction.
33. I consider that the judge erred in that view. Having concluded that the consent order was definitive of and/or accurately represented the scope and terms of the parties’ earlier agreement, his task became one of construction in the light of the background to, and circumstances surrounding, the agreement excluding the individual subjective intention and understanding of the parties.
34. That was because the meaning of the word ‘article’ is uncertain and ambiguous. The most relevant of the various definitions of the word appearing in the current edition of the Shorter Oxford English Dictionary are respectively ‘a paragraph, section or distinct item’, ‘a distinct part or portion; a piece a particular’ and ‘a literary composition in a journal, magazine, encyclopaedia, etc treating a topic independently’. In the Concise Oxford Dictionary, following the primary definition (not relevant to this case) the word is defined as ‘a piece of writing included with others in a newspaper or magazine’. On their face, all those definitions seem to me potentially wide enough to cover any distinct piece of writing devoted to the claimant’s products within the defendants’ publication and are not necessarily limited to matters of editorial composition.
35. Given the width and ambiguity of the word, and having detected no subjective common intention between the parties (indeed their subjective intentions were plainly at odds), it was for the judge to determine the meaning reasonably to be attributed to the word against the background of the dispute and the surrounding circumstances as reasonably available to the parties at the time of the making of the contract. As stated by Lord Hoffmann in Investors Compensation Scheme Limited –v- West Bromwich Building Society [1998]) 1 WLR 896 at 913:

“The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean.”

36. See also per Lord Hoffmann in Mannai Investment Co Limited –v- Eagle Star Life Assurance Co Limited [1997] AC 749 at 775:

“The meaning of words, as they would appear in a dictionary, and the effect of their syntactical arrangement, as it would appear in grammar is part of the material which we use to understand a speaker’s utterance. But it is only a part; another part is our knowledge of the background against which the utterance was made. It is that background which enables us, not only to choose the intended meaning when a word has more than one dictionary meaning but also … to understand a speaker’s meaning, often without ambiguity, when he has used the wrong words.”

37. I consider that the relevant background and circumstances to which the judge should have had regard in this respect were the following:

(1) The publication complained of in the statement of claim, which was the immediate cause of the proceedings, related to publication of both a reader’s letter and editorial comment thereupon which together were alleged to constitute malicious falsehood.

(2) The injunction claimed sought restraint against publishing any other mis-statements reflecting adversely on the claimant’s products.

(3) The settlement talks took place in the face of a developing campaign on the part of the defendants to publish information unfavourable to the claimant’s products by means of readers’ letters, editorial matter and notices in the form of advertisements inviting readers to submit such unfavourable information.

38. It is plain that neither the proceedings themselves nor the continuing campaign would be resolved or put to rest by a permanent undertaking which was confined to articles consisting of editorial matter but which excluded readers’ letters and notices/advertisements of the type referred to in paragraph 4 above. In those circumstances, in the absence of words of limitation or narrow definition, it seems to me that the word ‘article’ as used in the undertaking should receive a purposive construction apt to settle the dispute between the parties as manifested at the time of the compromise in an all-encompassing way.
39. The only reservation or qualification which I would place upon the inclusion of ‘letters, notices and advertisements’ within the expression ‘article’ is that, insofar as Which Kit might seek to publish classified or other advertisements by members of the public bona fide advertising Kit Cars or products of the claimant for sale or exchange, advertisements of such type would be outside the purview of the undertaking.

CONCLUSION

40. To summarise the position, therefore, while I would not disturb the judge’s decision or order that the parties concluded a compromise in the terms of the Schedule to that order, I would allow the appeal against that part of the judge’s decision in which he expressed the view that to read the word ‘article’ as applying to or including readers’ letters, notices and advertisements would materially alter the substance of what was agreed. Accordingly, should either party seek an order for a declaration as to the scope of the term ‘article’ in the light of this judgment, I would be prepared to hear argument upon its proper form. It seems to me that such a solution may well be appropriate, for the purposes of avoiding future dispute and/or proceedings for any alleged breach of undertaking.
41. Having said that, I cannot think that it could be in the real interests of either party to contemplate further proceedings. So far as any conduct of the defendants to date is concerned, any suggestion of deliberate breach of undertaking would almost certainly be doomed to failure in the light of advice which it seems clear the defendants must have received from Mr Marwick in respect of their conduct and in the light of the view of the judge at first instance. As to what may happen hereafter, it is difficult to conceive that either party would willingly contemplate the expense and aggravation which would inevitably be involved in further litigation between them.

Sir Murray Stuart-Smith

42. I agree

Lord Justice Peter Gibson

43. I also agree

Order: The defendant’s application to adduce further evidence is refused, the appeal dismissed, subject to the question of declaration as to the meaning of the term “article” on which the parties have reached agreement.

Of the matters in dispute, we refuse the application for a stay. We think that that application can be made to another lower court if the Mr Tanner wishes to pursue it. This is not the right court for the application. As for costs, we think that in the overall justice of this unusual case, having regard to both what was substance claimed by Mr Tanner and to the issues that were argues and took up so much time both below and in this court, there should be no order as to costs in respect of both the trail and the hearing in this court, including the application to adduce further evidence.

(Order does not form part of the approved judgment)