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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kay v Mills [2005] EWCA Civ 1537 (26 October 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/1537.html Cite as: [2005] EWCA Civ 1537

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY
(HIS HONOUR JUDGE BEHRENS
(sitting as a deputy judge of the High Court))

		Royal Courts of Justice Strand London, WC2
		26th October 2005

1. LORD JUSTICE PILL: Lady Justice Arden will give the first judgment.
2. LADY JUSTICE ARDEN: This is an appeal against the order dated 8th April 2005 of His Honour Judge Behrens, sitting as a deputy judge of the Chancery Division in the Leeds District Registry. By his order the judge dismissed an application by the appellant and struck out her defence and counterclaim. He further required the appellant to deliver up possession of a property known as 19 Millbank Drive, Rocester, Uttoxeter, Staffordshire ("the property"). On this appeal there is also a respondent's notice whereby the respondent, Mr Kay, seeks to uphold the order of the judge on the grounds of res judicata; and also, on the alternative basis, that there was no reasonable prospect of the defence or counterclaim succeeding at trial.
3. The judge had before him the respondent's application for summary judgment that the defence and counterclaim had no prospect of success. The action was brought by Mr Kay, who is the father of the appellant ("Mrs Mills"). The property is registered in the joint names of Mr Kay and Mrs Mills. Mr Kay's allegation in the action is that the property is held upon an express trust declared by a trust deed dated 7th July 2000 solely for his benefit absolutely. He alleges that when Mrs Mills lost her home following a repossession in early 2000, he agreed to purchase the property as a place for her to live so that she would be close to him. She was then married and had two children. The purchase price was £64,950, with costs of purchase being £1,324.63. Part of this sum was made up of a joint mortgage loan from Barclays Bank Plc and the balance, £21,774.63, was paid by Mr Kay. Mr Kay alleges that he made all repayments on the mortgage. He also alleges that there has been no payment of any rent or any other payment for use and occupation of the property.
4. Mr Kay also alleges in the action that he is entitled to the sole ownership of the property by virtue of the doctrine of res judicata. He alleges that in early 2003 Mrs Mills' previous mortgagee sought a charging order on her share of the property on the footing that she was a beneficial owner. Mr Kay alleges that Mrs Mills filed a witness statement in the action, whereby she confirmed that the property was held on trust for his sole benefit, and further confirmed her agreement that the contents of a notice of objection to the charging order filed by him.
5. At the hearing of the application for a charging order, Mrs Mills and Mr Kay, who were separately represented, appeared. Mr Kay was joined to the application. Both he and Mrs Mills denied that Mrs Mills had any interest in the property. Mr Kay's notice of objection was upheld and the application was dismissed with costs.
6. On 29th March 2004 Mrs Mills' solicitors wrote to Mr Kay alleging that Mrs Mills, and possibly Mr Mills, is/are entitled to raise an equity binding on the claimant, whereby they are entitled to reside in the property rent-free or call for the freehold title of the property. The particulars of claim recite that Mr Kay has demanded possession of the property. In his particulars, he seeks a declaration that he and Mrs Mills hold the property on the trusts declared in the trust deed dated 7th July 2000 and he seeks an order for possession accordingly.
7. The trust deed is signed by Mr Kay and Mrs Mills. The operative clause provides that Mr Kay and Mrs Mills declare that they "hold the property in trust for Mr Kay in fee simple and agree that they will at the request and cost of Mr Kay transfer the property to such person or persons and at such time or in such manner or otherwise deal with the same as Mr Kay shall direct or appoint, and will make such applications to the Land Registry and execute and do all such documents, acts and things as may be necessary to procure the appropriate registration or entry in the register, or give effect to any such transfer or dealings, or if so required to enable his interest to be protected."
8. In the 2003 proceedings Mr Kay and Mrs Mills gave evidence that Mrs Mills had no beneficial interest in the property. The transcript of evidence shows that District Judge Cochrane held that Mrs Mills had no such beneficial interest in the property at any time, and that she would never acquire such an interest in the future. In his evidence, Mr Kay explained how he had bought the property for his daughter to live in. He was not asked about the deed of trust. He told the court that he had left the property to his grandchildren in his will. Mrs Mills was asked what the arrangements were about the property. She replied as follows:

"Q. ... What was the tenor of the discussions between you and your father when the property was purchased as to your interest in the property?

A. I didn't as such. My father just purchased the property for me to live in with my children, myself and my husband."

9. By her defence and counterclaim as originally filed, Mrs Mills sought a declaration that the property was held on trust for Mr Kay, subject to her right and that of her family to remain in the property on the same terms as obtained prior to the proceedings and for so long as she or they required. She also sought a declaration for the prompt discharge of the mortgage and an order that Mr Kay was bound to transfer whatever interest he had in the property to her. She thus claimed that she had a beneficial interest in the property. Mrs Mills contended that in July 2000 she and Mr Kay had agreed that they would buy the property on terms that it would be held for Mr Kay alone until the mortgage had been discharged, but that after five years Mr Kay would transfer the interest he had in the property to the defendant. She further alleges that it had been agreed that the property would be a family home for so long as she and her husband and her children all required it. She further alleged that in the event that Mr Kay died before the period of five years had elapsed, the house would be left to the defendant by his will.
10. Mrs Mills also alleged that she had relied on the agreement and the oral assurances given by Mr Kay from time to time, and that she and her husband had discharged all outgoings on the property, save for repayments of the mortgage loan, and had paid for or effected certain repairs and improvements to the property. She further alleged that Mr Kay acknowledged his agreement and the defendant's right to have the property as a home by a letter dated 10th December 2000.
11. Mrs Mills applied to the judge to rely on correspondence which postdated the hearing before District Judge Cochrane on 30th September 2003. There are three letters in question. The first is a letter dated 26th November 2000, written by Mr Kay's solicitors, Wilkins & Thompson, in response to a suggestion that Mr Kay had agreed to sell the property to Mr Mills. In the course of that letter, Wilkins & Thompson state:

"Our Client instructs us that the property is simply not for sale as he intends that his daughter should have a home for life and that his grandchildren should have a home for as long as they require it. The increase in your Client's offer makes no difference to our Client's decision."

12. The second letter is dated 4th December 2003, in which Mr and Mrs Mills' solicitors ask Wilkins & Thompson if Mr Kay would execute a fresh deed of trust recording the fact that the property is held on the basis explained in the letter of 26th November. They state:

"At the present time neither our Client, Mrs JE Mills nor the grandchildren have any security for continuing to live at the property and this would provide such security. If your Client's stated intention is correct then we do not see why he should have any objection to entering into a Deed of Trust upon the terms of his intention."

13. To that Wilkins & Thompson replied on 10th December 2003:

"Mr Kay is not willing to enter into a new Deed of Trust as referred to in your letter. Our Client is satisfied that his daughter and grandchildren have a home for as long as they require it and does not consider that it is necessary to enter into a new Deed of Trust.

Our client will not change his mind on this issue therefore we trust that this will now be the end of the matter."

14. In his judgment the judge held that, if Mrs Mills' present case was to be accepted, there was no escape from the conclusion that Mrs Mills had lied to District Judge Cochrane and to the court. I should state immediately that I, for my part, do not consider that the judge should have used the word "lied", as he had not heard any oral evidence from Mrs Mills, or indeed anyone else, and the application before him was only an application for summary judgment. However, it is correct that Mrs Mills' case before the District Judge had been that she had no beneficial interest in the property.
15. Counsel for Mr Kay before the judge argued that there could be no reliance by Mrs Mills on what Mr Kay had said to her after certain correspondence in late 2000, in which Mr Kay asserted that he was the sole owner of the property. The judge rejected that argument for the purposes of the summary judgment application. He gave reasons, but it is unnecessary to go into that matter in this judgment. The judge found against Mrs Mills on the basis that she asserted before District Judge Cochrane that she had not even a possible future interest in the property which could be the subject of a charging order. She had supported that case by her evidence in cross-examination. District Judge Cochrane had accepted that the declaration of trust was a genuine document, and dismissed the charging order application.
16. The judge accordingly held that Mrs Mills, having chosen to assert that she had no interest in the property for the purposes of defeating the claim of her creditors, could not be allowed to turn round and assert that she had lied to the court and that she did have an interest in the property after all. The judge held that there was a strong public interest to prevent such conduct, and that it constituted an abuse of the process of the court. For those reasons, he struck out the defence and counterclaim.
17. At the opening of this appeal, Miss Darlington, who appears on this appeal but not below for Mrs Mills, conceded that Mrs Mills had no beneficial interest as at 30th September 2003. This is an important concession. In the course of the hearing she produced a draft amended defence and counterclaim which removes allegations which would support the claim to a beneficial interest. In particular, it removes from the prayer for relief a prayer for a declaration that upon discharge of the mortgage loan, the claimant (that is Mr Kay) is bound to transfer whatever interest he may have in the property beneficially or at all to Mrs Mills. However, the defence continues to rely on assurances that Mrs Mills and her family would have the right to remain in the property for as long as they so required. The new paragraph reads:

"In reliance upon the agreement that the Defendant and her family should have a home at the property for as long as they required and reliance upon the oral assurances of the claimant to like effect from time to time, and in reliance upon the assurances contained in the letters dated 26th November 2003 and 10th December 2003 from Wilkins & Thompson solicitors that the defendant and her children should have a home for so long as they require it, the Defendant with her husband discharged all outgoings upon the property, save for repayments of the mortgage loan and the following repairs or improvements to the property."

There is then a list of ten items of repair or improvement, which I need not read.

18. In support of the appeal, Miss Darlington submits that Mrs Mills' claim was based on proprietary estoppel and has a real prospect of success. She relies on the oral agreement alleged in the defence and counterclaim in paragraph 4 which I have just read, and relies particularly on the letters which I have also read. She further submits that the reliance given by the court in a case where proprietary estoppel is upheld are flexible. In support of her claim she also relies on the answer which Mrs Mills gave in cross-examination before District Judge Cochrane, which I have already read.
19. Thus Miss Darlington submits that the judge was wrong to find that because Mrs Mills had chosen to assert that she had this right to remain, she should not be permitted to advance that defence in the instant proceedings on the grounds that she had a lesser right to remain with her family.
20. Miss Darlington also reliance on the overriding objective in the Civil Procedure Rules. She further relies in Johnson v Gore Wood [2002] 2 AC 1, where Lord Bingham held:

"It may very well be, as has been convincingly argued ... that what is now taken to be the rule in Henderson v Henderson has diverged from the ruling which Wigram V-C made, which was addressed to res judicata. But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."

21. Miss Darlington also submits that the judge gave too much weight to the problems which Mrs Mills had created for herself. She submits that there remains an issue as to what the deed was intended to achieve and what rights of occupation the appellant had in the property. Those matters were not resolved by the 2003 proceedings, and indeed were not relevant to the enquiry then being made. She submits that the court might well find that Mrs Mills and her family had an equitable licence to remain in the property to which no charging order attached. This was not a matter which was canvassed before the District Judge, and Mr Kay's denial that she had a right to reside in the home was in conflict with the letters of 26th November 2003 and 10th September 2003.
22. Miss Darlington submits that the judge was wrong to reject her submission that the first mortgage instalment was paid by Mr Mills. That matter has not been pursued.
23. Miss Darlington submits that the striking out order was draconian and disproportionate, and the judge could have limited matters of reliance to those arising out of events subsequent to the hearing before District Judge Cochrane in September 2003, if that was the appropriate course.
24. Miss Darlington in her written submissions made a number of submissions about res judicata. But I do not need to deal with those, as that contention is not now pursued by the respondent.
25. I would conclude this part of my judgment by recording that Miss Darlington also relied on the certificate of truth attached to the defence and counterclaim in support of her argument that there was no prospect of success in the defence and counterclaim that there were assurances as to the licence to remain in the property, and that such assurances were given both before and after the 2003 proceedings.
26. Mr Din, for Mr Kay, does not oppose leave to amend the defence and counterclaim. He makes a number of submissions. He focuses his case on abuse of process rather than res judicata. After refining his arguments in the course of exchanges with members of the court, he accepts that District Judge Cochrane did not have to decide whether there was a licence to remain. But he does rely on the fact that Mrs Mills did not disclose to the District Judge the arrangements which she now asserts. Moreover, he relies on the fact that she has not since explained why she sought to assert a beneficial interest in her original defence and a right to remain in her defence and counterclaim, and why she continues to maintain that latter claim in her draft amended defence. He submits that she is not entitled to proceed with her amended defence and counterclaim unless she provides that explanation. Alternatively, she should not be able to rely on assurances as to the licence to remain which were given before the decision of the District Judge.
27. I now turn to my conclusions. I start by making the point that this is an appeal in the main part from an order of the judge on an application under CPR 3.4 and CPR 24. CPR 24.2 provides that the court may give summary judgment against a defendant if it considers that the defendant has no real prospect of successfully defending the claim or issue and that there is no other compelling reason why the case should be disposed of at trial.
28. The notes in the White Book at paragraph 24.2.3 make it clear that in order to defeat the application for summary judgment, it is sufficient for the respondent to show some prospect, i.e. some chance of success. That prospect must be real, i.e. the court will disregard prospects which are false, fanciful or imaginary. The inclusion of the word "real", means that the respondent has to have a case which is better than merely arguable. Authority is cited. The note continues:

"The respondent is not required to show that his case will probably succeed at trial. A case may be held to have a 'real prospect' of success even if it is improbable. However, in such a case the court is likely to make a conditional order ..."

29. The second point is of course that as the matter has now come before the court, there is an important concession that there was no beneficial interest as at 13th September 2003. That is an important matter, because it removes the principal grounds of defence as the defence stood before the judge.
30. Miss Darlington submits that Mrs Mills has a real prospect of success on her defence that she has the right to remain in the property with her children and family on the basis of proprietary estoppel. She has, indeed, pointed to the defence and the reference to the oral assurances, and also to the letters which I have read. We have not been taken to authority on what is required for proprietary estoppel, as that has not been in issue between counsel on this appeal. It is sufficient for my purpose to quote paragraph 959 of Halsbury's Laws: Estoppel:

"Also developed from common law estoppel by representation, proprietary estoppel has been described as follows. The owner of land, A, in some way leads or allows the claimant, B, to believe that he has or can expect some kind of right or interest over A's land. To A's knowledge, B acts to his detriment in that belief. A then refuses B the anticipated right or interest in circumstances that make that refusal unconscionable. In those circumstances, an equity arises in B's favour. This gives B the right to go to court and seek relief. The court has a very wide discretion as to how it will give effect to this equity."

31. That paragraph is largely based on the report of the Law Commission, Land Registration for the 21st Century: A Conveyancing Revolution (Law Com No 271, 2001), paragraph 5.29.
32. It has likewise not been in issue between the parties that if the court was satisfied that Mrs Mills had a right to remain, the court would have the jurisdiction, if it thought right, to grant some form of order which would enable her to continue to remain. I should also say that under paragraph 4 as now proposed to be amended, Mrs Mills also relies on a straight agreement to the effect that she should have a right to remain.
33. Those matters of themselves, ignoring the rest of the background of the case, would in my judgment lead to the conclusion that there was a real prospect of defence for the purposes of CPR 24. This is, after all, only an application for summary judgment, and the only question is whether there is a matter which ought properly to be tried.
34. But there are difficulties in this case arising from the proceedings before District Judge Cochrane. Mr Din, for Mr Kay, has argued powerfully that there is an abuse of process in the absence of an explanation by Mrs Mills as to why she is asserting this claim now, and indeed asserting the claim in her original defence, and how she came to give evidence in the terms she did before District Judge Cochrane. He submits that Mrs Mills' defence and counterclaim raise issues that were before the District Judge.
35. The premise of the issue so formulated is that there is no explanation that she has already given. I am not going to express a view on whether or not an explanation has been given. We have been taken to a witness statement from Mrs Mills and to further information served by her on the respondent in the course of the action, and the matters in those documents may in due course be offered as an explanation for the matters which Mr Din contends should be explained. For instance, there is an allegation that the deed of trust may have been obtained by undue influence. We have not asked Miss Darlington to reply on the question of whether an explanation has already been given or indicated in the documents served. So I am proceeding on the basis that there has been no explanation whatever of the maintenance of the present claim, as indeed the claim in the original defence, notwithstanding the events before District Judge Cochrane.
36. In my judgment, however, Mrs Mills is not obliged to provide an explanation in order to succeed on this appeal. Once it is accepted, as Mr Din properly accepted, that Mrs Mills did not have to raise any arrangement of the kind that she is now asserting in her draft amended defence when she was before the District Judge, there cannot, in my judgment, be said to be an abuse of process in putting forward that claim.
37. I return to the case of Johnson v Gore Wood, and in particular to the final part of the passage from the judgment of Lord Bingham which I have already read. He states that it would be wrong to hold that because a matter could have been raised in earlier proceedings, it should have been so raised so as to render the raising of it later necessarily abusive. He holds that there has to be a broad, merits-based approach, which takes account of the public and private interests involved and also takes account of the facts of the case, focusing attention on the crucial issue whether a party has been misusing or abusing the process of the court to raise this new issue.
38. In my judgment, Mrs Mills is not misusing or abusing the process of the court by seeking access to the court for a claim which has not been previously been the subject of adjudication, and which was not relevant for District Judge Cochrane to adjudicate upon or to be investigated in front of him. I do not consider that the public interest in the finality of litigation applies in a situation such as this.
39. Mr Din referred us to the case of Vervaeke v Smith [1983] AC 145. In that case a woman went through a marriage of convenience. She sought to claim that the marriage was void for lack of consent, but that claim ultimately failed before an English court. She then obtained a decree of a Belgian court that the marriage was void because the marriage was a marriage of convenience, and sought to have that decree recognised in the English court. It was held by the House of Lords that the decree was not one which should be recognised by the court. In the course of his speech, Lord Hailsham L.C. said:

"But the present proceedings depend upon the recognition of a Belgian decree of nullity which was obtained only after, and because, the original and fraudulent basis of the claim had been disposed of against her, and after the English judge had discovered for himself the true facts inconsistent with her bogus case and stated them in an unmistakable form. I believe that to recognise such a decree so obtained does offend the conscience of the court to such an extent that public policy precludes recognition."

40. Now that case is a very different from the present case, because the claim sought to be advanced in the defence is not a claim which is inconsistent with the contention that Mrs Mills has no beneficial interest in the property, the contention she maintained in the 2003 proceedings. It is a different case and therefore, in my judgment, that case can be distinguished.
41. Mr Din refined his position and submitted that the court should hold that Mrs Mills was not entitled in these proceedings to rely on events prior to the decision of the District Judge in view of her failure to give the explanations sought. This is an important point because Mr Din informed us that such documentary evidence on a reliance as there is, is evidence of expenditure on the property prior to 2003, with some minor exceptions.
42. In my judgment, for the same reasoning as I have just given above in relation to the contention that there should be an explanation for any part of the claim in these proceedings must apply here.
43. In any event, the court may well need to hear evidence concerning the arrangements from 2000, in order properly to interpret the assurances which were given at various points, so it was alleged, and indeed later in writing. The authorities on this are well known. It suffices for the purposes of this appeal to read an extract from the recent article by Lord Nicholls in "My kingdom for a horse: the meaning of words" [2005] 121 Law Quarterly Review, at 577, starting at 578:

"Language, whether spoken or written, comprises the means whereby one person seeks to express an idea of his and convey that idea to another person. The meaning of words chosen by a speaker comprises the idea those words prompt in his mind or in the mind of the hearer. A speaker knows the idea he was seeking to convey. That is, to him, the meaning of the words he has used. That is what he 'meant' by what he said. Similarly, a hearer's understanding of the idea the words were intended to convey is, to him, the meaning of the words. That is what he understood the speaker 'meant'. Thus the speaker and the hearer each endows the words with what, to him, is their meaning. This is the first step. Words used as a medium of communication do not have a 'meaning' of their own. They do not have a 'meaning' independently of the person who utters them or the person who hears them.

The second step is to note that the meaning, that is, the idea the words prompt in a person's mind, depends upon the context in which the words are used. Words, as we say, must always be understood, or 'interpreted', in their context. When considered in isolation words normally bear the meanings attributed to them in dictionaries. But when used as a medium of communication words do not speak for themselves. They have to be interpreted. Interpretation is the process whereby the hearer seeks to identify the idea the speaker sought to convey by the words he used. In order to do this, it is always necessary to know the context in which the words were being used. The phrase 'eats shoots and leaves' has a different meaning depending on whether the context is the eating habits of pandas or the lifestyle of Wild West outlaws.

Context, I add, includes the assumptions a speaker makes about the hearer's background knowledge. In all speech a speaker assumes the hearer is aware of a range of background facts. In choosing his words the speaker takes these background facts for granted, and adjusts his language accordingly. This is part of the context to be taken into account when interpreting his language.

This general analysis is equally true of written communications."

44. In my judgment, therefore, Mrs Mills has sufficiently shown, for all the reasons given above, that she has a prospect of success. I do not say that she will necessarily succeed at trial in her defence and counterclaim, or that she will not have to provide the explanations sought today by Mr Din. But having regard to her draft amended defence and counterclaim, I would give permission to amend and allow this appeal.
45. LORD JUSTICE LATHAM: I agree.
46. LORD JUSTICE PILL: I also agree for the reasons given by Lady Justice Arden.
47. Given the issue before District Judge Cochrane and the evidence given to him, as well as the other material before the court, it is not an abuse of process for the defendant to put before the court the case in the proposed defence and counterclaim.
(Submissions as to costs)
48. LORD JUSTICE PILL: The successful appellant seeks the costs of the appeal and the costs below. The claimant applied for and succeeded in obtaining before His Honour Judge Behrens an order dismissing the action. That does not stand and, subject to the question of costs below, the entire order of the judge is set aside.
49. As for the costs of the appeal, Miss Darlington submits that it has been successful and, notwithstanding a very late amendment to the proposed defence and counterclaim in the action, it was necessary for the defendant to bring the appeal and the defendant should have the costs of it.
50. It is unfortunate that the judge -- and we have to come to the conclusion it was because of the way the case was put to him at the hearing -- confined his attention to a claim which was then included in the defence and counterclaim, but not now pursued, that the defendant was a beneficial owner of the premises.
51. The application to the judge referred, as the reason for striking out, only to the res judicata alleged to arise from the previous decision of the Burton on Trent County Court. That cannot be a good reason itself, because the defence and counterclaim as then drafted -- and no new claim has been inserted since -- did include the claim on the basis of which this court has allowed the appeal. Moreover, the skeleton argument before the judge did, albeit in skeleton terms, make the same claim.
52. Miss Darlington has to accept that the point was not taken below. She was not counsel below, and it seems extremely unlikely it was taken on the claimant's part before the judge. She relies, however, on application made subsequent to the judge's decision that he should reconsider it. That was supported, first, by a skeleton argument by counsel who appeared at the hearing and, a few days later, by a skeleton argument from leading counsel. That was, as Miss Darlington accepts, a most unusual procedure, and it would be a rare case where a basic point not having been taken at a hearing, the party who had not taken it could have a case reopened.
53. We accede to the application of Mr Din in relation to the costs of the appeal that there should be no order as to costs. We take the view that the claimant could have helped the judge and should have helped the judge, if an application in relation to costs was to succeed, we put it no higher than that, by a more comprehensive consideration of the pleading he was seeking to strike out. But as against that, the complete failure, it appears, of the defendant at the oral hearing to invite the judge to consider the point on which the appeal has now succeeded is a major consideration.
54. Accordingly, there will be no order for the costs of the appeal.
55. As to the costs below, the order has been set aside that the claimant shall have the costs of the claim, which were assessed and stated in the order. This court does need to make provision, however, for those costs and, substantially for the same reasons as we have indicated in relation to the costs in this court, we direct that the order should be that there is no order for costs below. Of course, that is confined to the application and the hearing resulting from it and costs incidental thereto. We make no order as to the earlier costs in the action.

ORDER: Appeal allowed with no order as to costs; the order of the County Court judge is set aside; permission to amend in accordance with the draft submitted to the court granted, on Miss Darlington's undertaking to submit a properly typed-up copy of the pleading; no order for the costs below of the application and hearing resulting from it.

(Order not part of approved judgment)