Evans v Bartlam

BVA Nose) Pays busteh of ovesl eRe AppEianty;; 2,fyfBd
AND 1987
DAN kt ee RESPONDENT, | ADrilce:
9, 30.

Practice—Setting aside judgment obtained by default—Discretion of judge ¥
—Jurisdiction of Court of Appeal to interfere with exercise of judge’s
discretion—R. S. C. Order xi11., ry. 10; Ovdey XxvUl., 7. 15.

Where a discretionary jurisdiction is given to the Court or a
judge, the judge in Chambers is in no way fettered by the previous
exercise of discretion by the Master, although no doubt he will
give the weight it deserves to that decision.

A judgment debtor who asks for and obtains a stay of execution
does not thereby approbate the judgment or elect to treat it as
binding so as to preclude him from thereafter seeking to set it
aside whether on appeal or otherwise.

While the Court of Appeal will not normally interfere except
on grounds of law with the exercise of the judge’s discretion, if
it is seen that on other grounds his decision would result in
injustice being done, the Court of Appeal has both the power and
the duty to remedy it.

Cooper v. Cooper [1936] W. N. 205 approved.

Campbell & Co. v. Pollak [1927] A. C. 732 distinguished.

Decision of Court of Appeal [1936] 1 K. B. 202 reversed.

APPEAL by the defendant Evans from a decision of the
Court of Appeal (1).

The defendant had betting transactions with, resulting in
indebtedness to, the plaintiff. The latter’s agent threatened
to report the defendant as a defaulter if he failed to pay the
losses. Thereupon the defendant, as the plaintiff alleged,
promised to pay. The defendant not having paid, the plaintiff
brought an action against him for the amount, but the
defendant failed to enter an appearance within the stipulated
time and judgment was signed against him by default. In
reply to an application by the plaintiff’s solicitor for payment
of the amount of the judgment, the defendant asked for time
so that he could make arrangements to pay, and time was
given to him. Subsequently the defendant entered an
appearance to the writ, applied to have the judgment set

* Pyesent: Lorp ATKIN, LORD THANKERTON, LORD RUSSELL OF
KILLOoWEN, Lorp Wricut, and LorpD RocuHE.

(1) [1936] 1 K. B. 202.

474 HOUSE OF LORDS [1937]

H.L.(E.) aside, and for leave to defend. The Master dismissed the
1937. application, but Greaves-Lord J. in Chambers set aside the
Evans judgment and gave leave to defend upon terms.

Barttam, | On appeal to the Court of Appeal Slesser and Scott L.JJ.
—— (Greer L.J. dissenting) came to the conclusion that the judge

was precluded from exercising his discretion to set aside the
judgment by the fact that with knowledge of the judgment
the defendant applied for the matter to stand over for him to
see if he could arrange to pay, and the plaintiff had consented
to let it stand over for seven days. In Slesser L.J.’s opinion
the defendant was seeking to approbate and reprobate ;
Scott L.J. took the view that the defendant knew or must
_ be presumed to know that be had the right to apply to set
\ aside the judgment, and by asking for and obtaining time he
irrevocably elected to abide by the judgment.
The defendant appealed to this House.

Beyfus K.C. and Charles L. Henderson for the appellant.
The view taken by the majority of the Court of Appeal that
the doctrine of approbation and reprobation or election
applied to the facts of this case has no application. Under
Order x111., r. 10, the Court is expressly given power to set
aside or vary a judgment obtained by default upon such terms
as may be just ; see also Order xxvit., r. 15, to the like effect,
and Watt v. Barnett (1). Greaves-Lord J. made an order
setting aside the judgment obtained by default and giving
leave to defend on terms. In doing so he exercised his
discretion, which was unfettered by the view taken by the
Master in Chambers, and having done so his decision cannot
be interfered with. In Campbell & Co. v. Pollak (2), Viscount
Cave said (3) : “‘ When a judge, deliberately intending to exercise
his discretionary powers, has acted on facts connected with
or leading up to the litigation which have been proved before
him... . then it seems to me that a Court of Appeal, although
it may deem his reasons insufficient and may disagree with his
conclusion, is prohibited by the statute from entertaining

(1) (1878) 3 Q. B. D. 363. (3) [1927] A. C. 812.
(2) [1927] A. C. 732.

A. ¢. AND PRIVY COUNCIL.

475

an appeal from it.” The principle there stated applies H. L. (E.)

precisely to the present case. See also Wright v. Mills (1)
and Andromeda Handelsaktieselskab v. Holme. (2) In the
latter case Atkin L.J.said: ‘I think it is important to make it
clear that nothing which is said in this decision will affect
the complete discretion of the Master or a judge when asked
to set aside a judgment regularly obtained to impose any
just and reasonable terms upon the party so applying.”’ With
that exercise of judicial discretion the Court of Appeal should
not interfere unless for very special reasons which are not
present in this case.

Croom-Johnson K.C. and Shanly for the respondent. To
entitle a litigant against whom a judgment has been regularly
signed to have it set aside he must satisfy the Court of two
things, first, that there is a real defence to the claim, and
secondly how it is that judgment has been signed against him
by default, and he must give some satisfactory explana-
tion why he did not defend the action. A plaintiff who gets
a judgment obtains thereby a right of property of which he
should not be deprived unless certain conditions have been
fulfilled. In Haigh v. Haigh (3) Pearson J., after citing certain
passages from Atwood v. Chichester (4), said that there was
no case which showed that the rule as to setting aside a
judgment obtained by default could be acted upon where
the party seeking to put it in force had, with full knowledge
and wilfully, allowed judgment to go by default. Further,
the judge in Chambers ought not to overrule the exercise
of the Master’s discretion, where the Master who has the
powers of a judge in Chambers—see Order Liv., r. 12—has
-exercised his discretion on right principles.

[Lorp ATKIN. Masters are not intended to be the final
judges between the parties. ]

[Lorp Rocue. The hearing before the judge is a rehearing. |

The judge must have some materials upon which to exercise
his discretion, and we contend that there were no materials
in this case upon which he could do so.

(1) (1889) 60 L. T. 887. (3) (1885) 31 Ch. D. 478.
(2) (1923) 130 L. T. 329. (4) (1878) 3 Q. B. D. 722.

1937
ed
EVANs

Uv.
BArRTLAM.

476

Efe CE)
1937
—
Evans

Uv.
BARTLAM.

HOUSE OF LORDS [1937]

Beyfus K.C. was not called upon to reply, but he referred
to Cooper v. Cooper. (1)

1937. April 9. The House took time for consideration.

April 30. Lorp ATKIN. My Lords, this is an appeal by
the defendant from an order of the Court of Appeal (Slesser
and Scott L.JJ., Greer L.J. dissenting), who reversed an order
of Greaves-Lord J., sitting in Chambers, setting aside on
terms a judgment obtained against the defendant on default
of appearance. The case came before the learned judge in
Chambers on appeal from a Master who had refused the
application. It appears that the defendant in 1931 had incurred
losses to the plaintiff, a bookmaker, for bets on horse races
to the amount of 1336/., which by the end of 1932 had been
reduced by small payments on account to 1241/. 11s. 9d. In
May, 1935, the plaintiff, not having received any further pay-
ments, gave an authority in writing to one Irving, who carried
on business as the National Turf Protection Society in the
name of A. Harrison Ford, to recover the amount claimed
by any steps he deemed expedient by further reporting the
debtor to the Committee of Tattersalls or other authority.
On May 13 Mr. Irving saw the defendant, and according to
an affidavit made by Mr. Irving sworn on October 9g, 1935, he
told the defendant that the default would be reported to
Tattersalls, and eventually agreed with him that the case
would be withheld from Tattersalls so long as Mr. Irving was
satisfied that the defendant would settle within a reasonable
time. No further payments were made: there was a corre-
spondence in which the defendant appeared to make it clear
that he had no means to pay and that if pressed he’ would
have to plead the Gaming Act. On July 19, 1935, the writ in
the action was issued, the endorsement being for 12411. ts. od.,
‘the amount due to the plaintiff under and by virtue of an
agreement made on May 13 between the Proprietor Secretary
of the National Turf Protection Society acting as duly authorized
agents of the plaintiff and the defendant.’”’ The writ was not

(1) [1936] W. N. 205.

BPG: AND PRIVY COUNCIL.

477

served until September 16, 1935, when it was served personally H. L. (E.) Q 7

on the defendant by Mr. Irving. The defendant says that he
was then told by Mr. Irving that he bad three or four weeks
for appearance; Mr. Irving denies this. On September 24 the
plaintiff’s solicitors signed judgment on default of appearance
and on the same day wrote to inform the defendant and asked
for a cheque. Two letters followed which form the ground tor
the decision of the majority of the Court of Appeal. On
September 26 the defendant wrote to the plaintiff’s solicitor :
“T am in receipt of yours of the 24th and note contents.
I have seen Mr. Bartlam to-day and explained my position
and he is willing for the matter to stand over so that I can
see if I can make any arrangement to pay. I have never
refused to pay him but have not had any income to do it with
owing to bad trade. He is writing to Mr. Ford to-night.
At the moment I have nothing and no assets and know he
does not want to lose his money. P:$.—Kindly hold over
for meand oblige.’’ The solicitor’s answer was on September 28,
1935: “I am in receipt of your letter of the 26th inst. I
have also received a letter from my client who states that he
wishes me to do whatever may be necessary to obtain satis-
faction of the judgment obtained against you. You will
readily appreciate that you have brought the present position
upon yourself. You have made numerous promises both to
my client and to his agent Mr. Harrison Ford as to the
settlement of the amount due. No one of such promises
has been performed by you and my client was left without
option but to proceed as he did. In all the circumstances I
am prepared to let the matter stand over for a further period
of seven days, but I must ask you to understand please that,
unless at the expiration of that period I receive payment

of the total amount due, proceedings will be taken to enforce ,

the judgment without further notice to you.” On
October 3, 1935, the defendant took out a summons to set
aside the default judgment and supported it by an affidavit
in which he made the statement above mentioned as to having
been told by Mr. Irving that he need not take any steps for
a month, and stated that the alleged contract, if made at

1937
ed

EVANS
v.
BARTLAM.

Lord Atkin.

w)

©)

478

H. L. (E.)

1937(4)
——

EvANs

v.
BARTLAM.

Lord Atkin.

HOUSE OF LORDS [1937]

all, which was denied, was a contract by way of gaming and
wagering. The Master dismissed the application ; the learned
judge on appeal granted it and set aside the judgment on terms
as to costs. The power to set aside a judgment obtained on
default of appearance is given to the Court or a judge under
Order xitl.,r. 10; anda similar power extending to judgments
by default under any rule is given by Order XXVII., r. I5.
It is a power entrusted to the discretion of the Court or judge,
and by Order Liv., r. 12, the Master is given jurisdiction to
exercise the discretion.

As to the limits of the discretion, if any, it may be necessary
to say a word or two later? I only stay to mention a contention
of the respondent that the Master having exercised his
discretion the judge in Chambers should not reverse him
unless it was made evident that the Master has exercised his
discretion on wrong principles. I wish to state my conviction
that where there is a discretionary jurisdiction given to the
| Court or a judge the judge in Chambers is in no way fettered
by the previous exercise of the Master’s discretion. His own

_ discretion is intended by the rules to determine the parties’

‘

| rights: and he is entitled to exercise it as though the matter
came before him for the first time. He will, of course, give
the weight it deserves to the previous decision of the Master :
but he is in no way bound by it. This in my experience has
always been the practice in Chambers, and I am glad to find
it confirmed by the recent decision of the Court of Appeal in

l Cooper v. Cooper (x), with which I entirely agree.

On appeal to the Court of Appeal by special leave the
majority, Slesser and Scott L.JJ., came to the conclusion
that the judge was precluded from exercising his discretion
to set aside the judgment by the fact that with knowledge
of the judgment the defendant had applied for the matter to

ce stand over for him to see if he could arrange to pay and the

plaintiff had consented to let it stand over for seven days.

Slesser L.J. preferred to put it on the ground that the

defendant was seeking to approbate and reprobate. He tooka

benefit under the judgment, namely, seven days’ time, and could
(1) [1936] W. N. 205.

A. C. AND PRIVY COUNCIL.

479

not thereafter be allowed to seek to set it aside. Scott Leys FL)

preferred to put it on election. The defendant knew or must

1937

be presumed to know that he had the right to apply to set the SA VANS
judgment aside and by asking for and obtaining time he »,,) ae

irrevocably elected to abide by the judgment.
My Lords, I do not find myself convinced by these judgments.

I find nothing in the facts analogous to cases where a party»

having obtained and enjoyed material benefit from a judgment
has been held precluded from attacking it while he still is in
enjoyment of the benefit. I cannot bring myself to think that
a judgment debtor who asks for and receives a stay of
execution approbates the judgment, so as to preclude him
thereafter from seeking to set it aside whether by appeal or
otherwise./ Nor do I find it possible to apply the doctrine of
election. Ut is a simple answer to say that to infer election
it must be shown that the person concerned had full knowledge

of the various rights amongst which he elects. ‘There is here \
no evidence that the defendant at the time he asked for and (

Lord Atkin.

received time had any knowledge of his right to apply to set //

the judgment aside. I cannot think that there is any |
'

presumption that he knew of this remedy either sufficiently |
for the purposes of the doctrine as to election or at all. For
my part I am not prepared to accept the view that there is in|

|

law any presumption that any one, even a judge, knows al
the rules and orders of the Supreme Court. \The fact is that |
there is not and never has been a presumption that every one)
knows the law. There is the rule that ignorance of the law
does not excuse, a maxim of very different scope and
application. Neither of the Lords Justices expressed any
intention to review the discretion exercised by the judge in
Chambers except by reference to the point which in their
opinion in law precluded him from exercising any discretion
in favour of the defendant. Coming to the conclusion that
this point of law is ill-founded, I think it follows that the
appeal to the Court of Appeal should have been dismissed. I find
myself in agreement with the reasoning of Greer L.J. except
on one point. I agree that both rules, Order XIII., r. 10, and
Order XXVI.., r. 15, give a discretionary power to the judge in

f

®

480

e2))

H. L. (E.)|
1937
—

EVANS
v.
BaARTLAM.

Lord Atkin.

@)

Cc

HOUSE OF LORDS [1937]

Chambers to set aside a default judgment. The discretion
is in terms unconditional. The Courts, however, have laid
down for themselves rules to guide them in the normal exercise
of their discretion. One is that where the judgment was
obtained regularly there must be an affidavit of merits,
meaning that the applicant must produce to the Court
evidence that he has a prima facie defence. It was suggested
in argument that there is another rule that the applicant
must satisfy the Court that there is a reasonable explanation
why judgment was allowed to go by default, such as mistake,
accident, traud or the like. I do not think that any such rule
exists, though obviously the reason, if any, for allowing
judgment and thereafter applying to set it aside is one of the
matters to which the Court will have regard in exercising its
discretion. If there were a rigid rule that no one could have
a default judgment set aside who knew at the time and
intended that there should be a judgment signed, the two
rules would be deprived of most of their efficacy. (The

principle : is that unless and until the Court has
pronounced_ajudgment upon the merits or by consent, it is
to have the po the expression of its coercive

power where that has only bee ained b ilure to follow
any of the rules of procedure.

But in any case in my opinion the Court does not, and
I doubt whether it can, lay down rigid rules which deprive
it of jurisdiction. Even the first rule as to affidavit of merits
could, in no doubt rare but appropriate cases, be departed from.
The supposed second rule does not in my opinion exist. But
while the judge has such a discretion as I have mentioned
I conceive it to be a mistake to hold, as Greer L.J. seems to
do, that the jurisdiction of the Court of Appeal on appeal
from such an order is limited so that, as the Lord Justice
said, the Court of Appeal “‘ have no power to interfere with
his exercise of discretion unless we think that he acted upon

some wrong principle of law.’’ Appellate jurisdiction is

_ always statutory: there is in the statute no restriction upon

| the jurisdiction of the Court of Appeal: and while the

appellate Court in the exercise of its appellate power is no

A. C. AND PRIVY COUNCIL.

doubt entirely justified in saying that normally it will not H.L. (E).

interfere with the exercise of the judge’s discretion except
on grounds of law, yet if it sees that on other grounds the
decision will result in injustice being done it has both the power
and the duty to remedy it. The decision in Campbell & Co. v.
Pollak (1) was based upon the fact that an appeal in the
matter of costs was expressly excluded from the jurisdiction
of the Court of Appeal by the Act and rules.

It follows from what I have said that in this case there was
no reason for interfering with the discretion of Greaves-Lord J.
The appeal should be allowed and the order of the Court of
Appeal set aside and the order of Greaves-Lord J. dated
October 18, 1935, restored. The appellant should have the
costs here and in the Court of Appeal.

Lorb THANKERTON. My Lords, I concur.

LorpD RUSSELL OF KILLOWEN. My Lords, Order xtlI., r. 10, ’

in its terms is unfettered by any conditions, and purports to
confer upon the Court or a judge full power to set aside a
judgment signed in default of appearance, and if thought
fit to impose such terms, as a condition of the setting aside,
as may be just.

It was argued by counsel for the respondent that before the
Court or a judge could exercise the power conferred by this
rule, the applicant was bound to prove (a) that he had some
serious defence to the action and (bd) that he had some
satisfactory explanation for his failure to enter an appearance
to the writ. It was said that until those two matters had been
proved the door was closed to the judicial discretion ; in other
words, that the proof of those two matters was a condition
precedent to the existence or (what amounts to the same
thing) to the exercise of the judicial discretion.

For myself I can find no justification for this view in any of
the authorities which were cited in argument; nor, if such
authority existed, could it be easily justified in face of the
wording of the rule. It would beadding a limitation which the
rule does not impose.

(1) [1927] A. C. 732.
A. C. 1937. 3 21

481

1937
—

EvANns
v.
BARTLAM.:

Lord Atkin.’

7

482 HOUSE OF LORDS [1937]

How. () The contention no doubt contains this element of truth,

1937 that from the nature of the case no judge could, in exercising

Evans the discretion conferred on him by the rule, fail to consider.
Bartram, Doth (a) whether any useful purpose could be served by setting
aside the judgment, and obviously no useful purpose would
be served if there were no possible defence to the action,
and (b) how it came about that the applicant found himself
bound by a judgment regularly obtained, to which he could
have set up some serious defence. But to say that these two
matters must necessarily enter into the judge’s consideration
is quite a different thing from asserting that their proof is a
condition precedent to the existence or exercise of the
discretionary power to set aside a judgment signed in default
of appearance.

In the case now under discussion the judge in Chambers
thought it proper, in the exercise of his discretion, to set
aside the judgment ; and unless an appellate Court is satisfied
that the discretion has been wrongly exercised and should
have been exercised in the contrary way, the judge’s order
should be affirmed. The Court of Appeal (by a majority) has
set aside the judge’s order not upon the ground of a wrong
exercise of the discretion, but upon the ground that, on the
facts of the case, the judge was unable to exercise any discretion
at all, the defendant being in some way debarred from seeking
relief.

Slesser and Scott L.JJ. held that because the defendant
against whom judgment had been signed had asked for and
obtained a promise that the judgment would not be imme-
diately enforced, but that the matter would be allowed to stand
over for seven days, he was no longer entitled to apply to
have the judgment set aside. They put it on three grounds.
That he had elected not to apply to have the judgment set
aside. That he could not both approbate and reprobate,
and could not accordingly accept the judgment as binding
and thereafter seek to set it aside. That his application for
delay was a representation that he accepted the judgment
which estopped him from applying to set it aside.

My Lords, I confess to a feeling of some bewilderment at the

Lord Hessel
of Killowe:

—

A. C. AND PRIVY COUNCIL. 483

theory that a man (who so long as it stands must perforce H. L. (E.)

acknowledge and bow to a judgment of the Court regularly —_ 1937

obtained) by seeking and obtaining a temporary suspension Evans
, of its execution thereby binds himself never to dispute its Baan
' validity or its correctness, and never to seek to have it set rae
\|aside or reversed. If this were right, no defeated litigant. °f Killowen.
| could safely ask his adversary for a stay of execution pending |
(an appeal; for the grant of the request would end the right.

of appeal. ‘ee he doctrine of election only applies to a man who |;

elects with full knowledge of the facts. There is no suggestion i

that the defendant knew that he could apply to set the

judgment aside. The doctrine of approbation and reprobation \

requires for its foundation inconsistency of conduct ; as where ~

a man having accepted a benefit given him by a judgment

cannot allege the invalidity of the judgment which conferred

the benefit. ~ To obtain a stay of execution of a judgment is

jot the acceptance of any benefit conferred by the judgment.
/ ‘The doctrine of estoppel requires the statement of a fact, upon )
“the faith of the truth of which another alters his position:

To ask for a stay of execution is no statement of any fact.

Even if it could be said (which it could not) to amount to a

statement that no application would be made to set the

judgment aside, that would only be a statement of intention

and could ground no estoppel.

There being no justification for the grounds upon which the

majority of the Court of Appeal proceeded in setting aside

the judge’s order, the question remains whether any reason

exists for holding that the judge exercised his discretion

otherwise than rightly. For myself I can find no such reason.

Indeed, I would go further and say that having read and

considered the evidence and letters in the case (and there is

here no question of seeing witnesses and hearing them cross-

examined) I would myself have come to the same conclusion

as that which was reached by the learned judge.

I would accordingly allow this appeal.

Lorp WricHt. My Lords, the Court of Appeal by a
majority (Greer L.J. dissenting) have reversed an order of
3 Zhe

484

HE)
1937
——

Evans
Vv.
BARTLAM.

Lord Wright.
r

HOUSE OF LORDS [1937]

Greaves-Lord J. setting aside a judgment in default given against
the appellant in favour of the respondents. The Master had,
in the exercise of his discretion under Order XXVIII, ¥. 15, or
Order x1IJ., r. 10, refused to set aside the judgment. But it is,
clear that where the Court of Appeal is required to review!
a discretionary order of a judge reversing the Master the)
substantial discretion is that of the judge, and it is the judge’s'
order which must particularly be considered by the appellate
Court: Cooper v. Cooper. (1) The Masters admirably
exercise their discretion in routine matters of pleading,
discovery, interrogatories, venue, mode of trial, and other
interlocutory directions, without any appeal being necessary.
But such matters may on occasion raise questions most vital
to the final issue of the case. The decision of such questions
is properly for the judge who will no doubt consider
carefully the order of the Master. Ifa further appeal is taken
to the Court of Appeal it is the judge’s discretion which that
Court has either to support or vary or reverse.

In the Court of Appeal in the present case Slesser and Scott
L.JJ., who formed the majority, held that the judge’s order
should be reversed and leave to set aside the default judgment
refused on the ground that the appellant had by his conduct
shut himself out of any right to claim to have the judgment
set aside. What was relied upon was that he had requested
the respondents to give him time so as to see if he could make
any arrangement to pay, and that the respondent had granted
that request by agreeing to let the matter stand over for seven
days. Slesser and Scott L.JJ. held that thereby the appellant
was estopped from contesting the validity of the judgment,
or must be deemed to have elected not to do so, since other-
wise he would be both approbating and reprobating the
judgment. It was said that he had “ obtained this advantage
on the basis that he did not dispute the validity of the
judgment.” I am not clear on what legal principle this.
conclusion is based. Estoppel seems to me to be out of the
question since estoppel is a rule of evidence which prevents the
person estopped from denying the existence of a fact ; but

(1) [1936] W. N, 205. /

A. C. AND. PRIVY COUNCIL.

what is postulated here is that the appellant has barred himself
from. exercising a legal right to apply to the Court. Election
is a question of fact.\ I can find no facts here to show that the
elements of election such as intention or knowledge of his
legal rights were present. Nor can I find any evidence to
justify the inference that the appellant had undertaken not
to dispute the validity of the judgment. Such an under-
taking, if given for sufficient consideration, so as to bind the
appellant, might have supported the conclusion of the Court
of Appeal; nothing less would have sufficed, though even
then it would, I incline to think, still be only a matter to be
considered in the exercise by the Court of its statutory discre-
tion. But from the bare evidence that the appellant had
requested and been granted a few days’ time I find it impossible
to draw the inference necessary to justify the conclusion.
The cases cited by Slesser L.J. seem to me to deal with
different circumstances. The appellant here has not taken
anything under the judgment, nor has he deluded the
respondents to their disadvantage. A judgment creditor
may be well advised in his own interests to give a gratuitous
delay to his debtor in the hope that to avoid publicity
or other reasons the debtor will not seek to impeach the
judgment. There was no more than that in the present case.
It may be regarded as being analogous to asking for a stay
of execution.

I cannot, with all respect, agree with Slesser and Scott L.JJ.
in their conclusion that the appellant was barred from applying
under Order XxviI., r. 15. On this footing the order of
Greaves-Lord J. has been attacked on behalf of the respondents
as not being a good exercise of his discretion under the rule ;
on the other hand Greer L.J., who dissented from the other
members of the Court, took the view that the Court ought not
to interfere with the order of the judge made in the exercise
of his discretion. He said: “I take the decision in Campbell
v. Pollak (xt) in the House of Lords as meaning that wherever
the judge in Chambers is invested with a discretion the Court
of Appeal has no power to set aside an order made by him

(1) [1927] A. C. 732.

485

H. L..(E,)
1937
——

Evans
Vv.
BARTLAM,

Lord Wright.

486

HL. (3)
1937
——
Evans

Vv.
BARTLAM.

Lord Wright.

HOUSE OF LORDS [1937]

in the exercise of his discretion unless the Court comes to the
conclusion that he exercised his discretion on grounds which
were wholly irrelevant to the matters which he had to
consider.”’

If that were so, it would be unnecessary to consider the con-
tention of Mr. Croom-Johnson that the judge wrongly exercised
his discretion. But with all deference to the learned Lord
Justice, I am unable to accept what he said as a correct state-
ment of the law or practice in this matter. Campbell & Co. v.
Pollak (1) is no authority for that proposition. If it were it
would have changed the law and the practice. But in truth
it did not. It is dealing merely with the judge’s discretion in
regard to costs, which is a statutory discretion, precisely
defined by statutes and statutory rules. Thus Lord Cave L.C.
says (2): ‘‘ The jurisdiction of the Court of Appeal to review
an order of the trial Court as to costs depends on statutes and
on rules of Court which have the force of a statute.”’ I need
not discuss in detail the examination by the House of that
precisely limited right of review. But there is in that case no
reference to or discussion of the duty or power of the Court
of Appeal to review the general discretion of a judge in inter-
locutory matters, the extent of which has been illustrated by
numerous cases before and since Pollak’s case (1). It is clear
that the Court of Appeal should not interfere with the
discretion of a judge acting within his jurisdiction unless the
Court is clearly satisfied that he was wrong. But the Court
is not entitled simply to say that if the judge had jurisdiction
and had all the facts before him, the Court of Appeal cannot
review his order unless he is shown to have applied a wrong
principle. The Court must if necessary examine anew the
relevant facts and circumstances in order to exercise a discre-
tion by way of review which may reverse or vary the order.
Otherwise in interlocutory matters the judge might be regarded
as independent of supervision. Yet an interlocutory order
of the judge may often be of decisive importance on the final
issue of the case, and one which requires a careful examination

(1) [1927] A. C. 732. (2) Ibid. 804.

A. C, AND PRIVY COUNCIL.

by the Court of Appeal. Thus in Gardner v. Jay (I),

Bowen L.J. in discussing the discretion of the judge as regards

mode of trial says: ‘‘ That discretion, like other judicial
discretions, must be exercised according to common sense and
according to justice, and if there is a miscarriage in the exercise
of it it will be reviewed.”’ Bowen L.J. in that case held that
the appellant had not satisfied the onus of showing that the
discretion of the judge had been wrongly exercised. But
there are many cases in the books where it has been held that
the appellant has satisfied the onus of showing that the
exercise of the discretion by the judge was not justified
on the facts. A judge’s order fixing the date of trial or refusing
to grant an adjournment is a typical exercise of purely discre-
tionary powers, and would be interfered with by the Court of
Appeal only in exceptional cases, yet it may be reviewed by
the Court of Appeal. Thus in Maxwell v. Keun (2) the Court
of Appeal reversed the trial judge’s order refusing to the
plaintiff an adjournment. That was a pure matter of
discretion on the facts. Atkin L.J. said (3) : “ I quite agree the
Court of Appeal ought to be very slow indeed to interfere
with the discretion of the learned judge on such a question as
an adjournment of a trial, and it very seldom does so; but,
on the other hand, if it appears that the result of the order
made below is to defeat the rights of the parties altogether,
and to do that which the Court of Appeal is satisfied would be
an injustice to one or other of the parties, then the Court has
power to review such an order, and it is, to my mind, its duty
todoso.”’ The reporter adds a note that the plaintiff succeeded
in the action when it came on at the adjourned date. A
recent case in which the Court of Appeal set aside a judge’s
order remitting an action in tort to the County Court was
Stevens v. Walker (4), where it was held that the circumstances

did not justify the order. I need not multiply authorities |

save to observe that in Watt v. Barnett (5), to which I shall
refer later, the Court of Appeal, affirming the Divisional Court,

(1) (1885) 29 Ch. D. 50, 58. (4) [1936] 2 Keb 215.
(2) [1928] 1 K. B. 645. (5) 3 Q. B. D. 363.
(3) Ibid. 653.

487

H. L. (E.)
1937
—_

EVANS
v.
BARTLAM.

Lord Wright.

488 HOUSE OF LORDS [1937]

H. L. (E.) reversed the order of the judge who had refused to set aside a
1937. default judgment. There is at least one other case reported
Evans Where this was done by an appellate Court.
Bartram, 12 my opinion this House must consider, on all the circum-
ee stances of the case, the contentions on behalf of the respondent
—- that the order of Greaves-Lord J. was wrong, and that on the
merits the default judgment should not be set aside. For
the reasons set out above this House has no guidance in the
matter from the Court of Appeal and must determine whether
the respondent has satisfied the onus of showing that the
judge was wrong on the merits just as the Court of Appeal
should have done.

I see no reason to interfere with the judge’s order. The
respondent’s counsel in my judgment has entirely failed to
satisfy the onus of showing that the judge was wrong. Order
XXVII., r. I5, gives a discretion untrammelled in terms: it
does not even require an affidavit as a condition and the
discretion may be exercised on any proper material, though
in practice an affidavit is generally required. To quote again
from Bowen L.J. in Gardner v. Jay (1): ‘“‘ When a tribunal is
invested by Act of Parliament or by Rules with a discretion,
without any indication in the Act or Rules of the grounds
upon which the discretion is to be exercised, it is a mistake to
lay down any rules with a view of indicating the particular
grooves in which the discretion should run, for if the Act or
the Rules did not fetter the discretion of the Judge why should
the Court do so?” Similarly it has been held by the Court
of Appeal in Hope v. Great Western Ry. Co. (2) that the
discretion to grant or refuse a jury in King’s Bench cases is in
truth, as it is in terms, unfettered. It is, however, often
convenient in practice to lay down, not rules of law, but some
general indications, to. help the Court in exercising the
discretion, though in matters of discretion no one case can be
an authority for another. As Kay L.J. said in Jenkins v.
Bushby (3), “the Court cannot be bound by a previous
decision, to exercise its discretion in a particular way, because

(1) 29 Ch. D. 50, 58. (3) [1891] 1 Ch. 484, 495.
(2) [1937] 2 K. B. 130.

A. C. AND PRIVY COUNCIL.

that would be in effect putting an end to the discretion.” A
discretion necessarily involves a latitude of individual choice
according to the particular circumstances, and differs from a
case where the decision follows ex debito justitiae once the
facts are ascertained. In a case like the present there is a
judgment, which, though by default, is a regular judgment,
and the applicant must show grounds why the discretion to
set it aside should be exercised in his favour. The primary
consideration is whether he has merits to which the Court
should pay heed; if merits are shown the Court will not
prima facie desire to let a judgment pass on which there has
been no proper adjudication. This point was emphasized in

Watt v. Barnett (1). Here the appellant shows merits, in that >

the debt was primarily a gaming debt ; he denies that he made

any new contract within Hyams v. Stuart King (2), an authority

which has not yet been considered by this House. He clearly
shows an issue which the Court should try. He has been
guilty of no laches in making the application to set aside the
default judgment, though as Atwood v. Chichester (3) and other
cases show, the Court, while considering delay, have been
lenient in excluding applicants on that ground. The Court
might also have regard to the applicant’s explanation why he
neglected to appear after being served, though as a rule his
fault (if any) in that respect can be sufficiently punished by the
terms as to costs or otherwise which the Court in its discretion
is empowered by the rule to impose. The appellant here has
an explanation, the truth of which is indeed denied by the
respondent, but at this stage I see no reason why he should be
disbelieved on what appears to me to be a mere conflict
on affidavits. For all these reasons no ground is shown
to justify interference with the judge’s discretion and I
think that the appeal should be allowed and that this House
should make the order which the Court of Appeal should
have made.

Lorp Rocue. My Lords, I agree that this appeal should be

(x) 3 Q. B. D. 363. (3) 3:07B: Ds722.
(2) [1908] 2 K, B. 696.

489

Hi L.. (E.)
1937
EVANS
Uv.
BARTLAM.

Lord Wright.

490 HOUSE OF LORDS [1987]

H.L.(E.) allowed, and I have nothing to add to the reasons for that
1937 conclusion which have been stated by your Lordships.

EVANS
Bae ant Appeal allowed.

——

Solicitors for appellant: Maude & Tunnicliffe, for Stirk &
Co., Wolverhampton.

Solicitor for respondent : Leslie Marrison.