Neale v Gordon Lennox

Lorp MacnacutTen. My Lords, I am of the same opinion.
I agree entirely in the two propositions which Sir Robert Reid
laid down in his reply. I do not think that the Court is
entirely in the hands of counsel, and bound to give the seal of
its authority to any arrangement that counsel may make when
the arrangement itself is not in its opinion a proper one. In
the next place, I do not think that any counsel has authority
to compel his client to refer an action which the client desires
to try in open Court.

Lorp Brampton. My Lords, I am also of opinion that
this decision ought to be reversed, and that the parties ought
to be remitted to try the case in the ordinary course. I have
rarely heard anything more preposterous, to my mind, than the
notion that a suitor can impose no effective veto upon a course
proposed to be taken by his or her own counsel which rightly
or wrongly in his or her judgment will operate most pre-
judicially to his or her interests in an action, and possibly to
the ruin of his or her character. I quite agree, therefore, that
this appeal ought to be allowed and the case restored to the
paper.

Lorp Linpney. My Lords, I am of the same opinion. It
appears to me that the Court of Appeal inadvertently, or for
some reason which I do not understand, omitted to take into

A.C. AND PRIVY COUNCIL.

account the duty and function of a Court in a matter of this
kind. The judgment of the Court of Appeal proceeds upon
the ordinary doctrines of agency; but the ordinary doctrines
of agency are only half of what is to be considered in a matter
of this kind. The real facts are extremely simple. The Court
which originally made the order made an order referring an
action of libel and slander to a gentleman for trial. It made
that order by the consent of the parties—it had no jurisdiction
and no right to make that order except on the footing that the
parties consented. 'he order is good on the face of it, and the
learned judge who made it was perfectly justified in making it,
having regard to the evidence before him. But before that
order is drawn up one of the parties interested discovers that it
is made without her consent at all, and not only without her
consent, but in spite of her express instructions. Now, I
venture to say that if that had happened in the Chancery
Division, with the practice of which I am familiar, it would
have been a matter of course for the learned judge who made
that order to stay the drawing of it up if he had been informed
that the Court had inadvertently made the order upon the
assumption that the parties were consenting when in fact they
did not consent. I cannot imagine that it would cross his
mind for a moment that anything ought to be done except
to stay the drawing up of that order. Unfortunately the
plaintiff here wishing to get rid of the order drew it up with
the view of getting it set aside, and in form this is an applica-
tion, not to prevent the drawing up of the order, but to have it
set aside; but that is mere form—mere machinery. It would
be absolutely wrong, to my mind, for the Court to allow that
order to be acted on and to take effect the moment it is
judicially ascertained and brought to its attention that it is an
order which the Court never would have dreamt of making if
the Court had known the facts. That view of the case seems to
me to have been overlooked by the Court of Appeal, and to be
fatal to the validity of the order. The order made by the
Lord Chief Justice was, as I understand it, that the order
should be set aside and the action set down for trial, the costs
of the application to set it aside being the defendant's in any

473

H. L. (E.)
1902

—~
NEALE
Vv
GorpDon
LENNOX.

Lord Lindley.

ATA HOUSE OF LORDS [1902]

H.L.(E) event; and that, to my mind, ought to stand. The appeal
19022 ought to be allowed with costs—that is to say, the decision

Nev appealed from ought to be reversed with costs.
oa

Tanaind. Order of the Court of Appeal reversed with
ae costs here and in the Court of Appeal.

Lords' Journals, August 1, 1902.