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was highly probable that that act would result in death or
serious bodily harm?"
This point was certified by the court—which also gave
leave to appeal to the House of Lords—when it dismissed
an appeal by Pearl Kathleen Hyam, now in prison, against
conviction at Warwick Crown Court (Mr. Justice Ackner)
last November on two counts of murder.
Regina v. Hyam; Court of Appeal; 19/6/1973.
Lord Justice Edmund Davies, in the Court of Appeal, said
that in a summing-up, when special pleas such as provocation
or self-defence were raised, it was not sufficient to give a
general direction to the jury upon the burden of proof and the
standard of proof.
The appeal before their Lordships was the third case in
three days in which the court had had to deal with the same
kind of defect in a summing-up, and he repeated the hope
that trial judges would observe the warning which was given
by Lord Justice Winn in
R. v. Wheeler
[(1967) 52 Cr App R
28, 30-31]. It was most desirable, and in most cases essential,
that the jury be told that it was for the Crown to destroy
the validity of such a plea and not for the accused to establish
it.
Regina v. Cameron; Court of Appeal; 13/6/1973.
Shipping
Before Lord Reid, Lord Morris of Borth-y-Gest, Lord Wilber-
force, Lord Simon of Glaisdale and Lord Kilbrandon.
The House of Lords decided by a three-to-two majority
that the time had come to give a more liberal interpreta-
tion to the circumstances in which the English courts should
grant an application to stay an action in rem begun by a
foreign plaintiff in the English Admiralty Court, and stayed
the action of a Dutch barge owner on the ground that it
would be vexatious and oppressive in all the circumstances to
the Dutch defendants to have the claim against them tried
here, when the Antwerp Commercial Court was the more
appropriate forum.
Their Lordships allowed, Lord Morris and Lord Simon dis-
senting, an interlocutory appeal by the Holland America Line,
the Dutch owners of the container vessel, the Atlantic Star,
from the refusal of the Court of Appeal (the Master of the
Rolls, Lord Justice Phillimore and Lord Justice Cairns (
T h e
Times,
August 3; [1972] 3 WLR 746) to stay ah action
begun here.
In fog on January 28, 1970, the Atlantic Star was going
up the river to Antwerp without tugs when she collided with
a Dutch barge, the Bona Spes, moored outside a Belgian
dumb barge against the quay. Both barges were sunk with
their cargoes; two men on the Belgian barge were drowned,
and port installations were damaged. A surveyor appointed
by the Antwerp Commercial Court on the application of the
barge owners, made a report the trend of which was that the
collision was caused by the difficulties resulting from sudden
fog.
The Belgian barge owners and the Belgian accident insurers
began actions in the Antwerp court. The owners of the
cargoes also began proceedings; and proceedings by the port
authority in the same court were anticipated.
In June, 1971, the Dutch owner of the Bona Spes decided
to begin an action in rem in the Admiralty Court against
the Atlantic Star which was due in Liverpool. To avoid arrest,
Holland America accepted service of the writ, entered a
conditional appearance, arranged security of £80,000 in res-
pect of the claim, and applied to the Admiralty Court to
stay the action.
In January, 1972, the Bona Spes owner initiated proceedings
against Holland America in the Antwerp Court to preserve
the Belgian time limit in the event of his action in England
being stayed.
Mr. Justice Brandon found that the Antwerp court was
the more appropriate forum for the trial but refused the stay,
in the exercise of his discretion and on the established prin-
ciples that it would deprive the Dutch plaintiff of an ad-
vantage which he reasonably believed he would have if his
claim were tried in England and that Holland America had
not shown that the inconvenience to them would be oppres-
sive. The Court of Appeal, Lord Justice Phillimore with some
reservation, upheld that decision.
The Atlantic Star; 11/4/1973.
Specific Performances
Before Mr. Justice Brightman. (Judgment delivered March
Mr. Justice Brightman held that the court had jurisdiction
to make a supplemental order for an inquiry as to damages
in favour of purchasers who had not sought an order for the
inquiry when they had obtained an order for specific per-
formance. His Lordship was delivering a reserved judgment on
a claim by Mr. Holman Lancelot Ford-Hunt and his wife, of
Sidcup, Kent, against Mr. Raghbir Singh, of Bexley, Kent, foi
an inquiry as to the damage which they had suffered by
reason of his delay in completing a contract for the sale to
them of his home in Upper Holly Hill Road, Belvedere,
Bexley.
Ford-Hunt and Another v. Singh; Chancery Division; 8 /
3/1973.
Statute oi Frauds
Before Lord Justice Russell, Lord Justice Buckley and Lord
Justice Orr. (Judgments delivered April 10.)
A vendor who entered into an open oral contract to sell
his cottage was held to be bound thereby, it being sufficient
for the purposes of section 40 o fthe Law of Property Act,
1925, that subsequent correspondence between solicitors,
though not acknowledging the existence of a contract, con-
tained the terms which had been orally agreed.
The court, Lord Justice Russell dissenting, so held in dis-
missing an appeal by the defendant, Mr. Stuart Martin Jones,
of Dingleberry Cottage, Yarningdale Common, Claverdon,
Warwickshire, from a decision of Mr. Justice Ungoed-Thomas
last July ordering specific performance of his agreement to sell
Dingleberry Cottage to the plaintiff, Mr. Joseph Law, of
Hoo Hill, Alcester, Warwickshire.
Mr. Justice Ungoed-Thomas found that the parties had
entered into an oral, albeit unenforceable, contract on 17
February 1972 for the sale by the defendant to the plaintiff
of the cottage at £6,500, there being no intention that that
agreement should be subject to contract. On February 18 the
defendant's solicitors wrote to the plaintiff's solicitors: "We
understand you act for Mr. J . Law in connection with his
proposed purchase of [Dingleberry Cottage] for £6,500 sub-
ject to contract. We have been instructed on behalf of the
vendor and we are obtaining his title deeds and shall submit
a contract to you as soon as possible."
On February 25 the defendant's solicitors, referring to that
letter sent a draft contract to the plaintiff's solicitors for
approval, the receipt of which was acknowledged on March 7
when "preliminary enquiries" were forwarded. The judge
found that on March 13 the parties agreed orally on an in-
creased price of £7,000, the defendant assuring the plaintixff
that he would not go back on his word; that it was his
bond; and that the house was then the plaintiff's.
On March 17 the defendant's solicitors wrote to the plain-
tiff's solicitors: "Further to our letter of March 10 we here-
with enclose our replies to your preliminary enquiries. We
understand that an increase in the consideration has been
mutually agreed and we shall therefore be obliged if you would
amend the contract in your possession to read a purchase
price of £7,000."
On March 27 the plaintiff's solicitors forwarded his part of
the contract duly signed, completion having been fixed for
April 21. But on April 13 the defendant wrote to the plaintiff
telling him that he was putting the cottage up for auction
because of the rise in prices that had taken place.
Law v. Jones; Court of Appeal; 13/4/1973.
Before Lord Justice Russell, Lord Justice Buckley and Lord
Justice Orr. (Judgments delivered March 21.)
Where a defendant pleads that a memorandum in writing
does not sufficiently set out the terms of an oral agreement for
the sale of land, as required by section 40 of the Law of Pro-
perty Act, 1925, and gives particulars of that agreement, it
is not an abuse of the process of the court for the plaintiff to
bring a second action in which he relies on the defendant's
pleadings as constituting a memorandum in writing.
Their Lordships so held in dismissing an interlocutory appeal
by the defendant, Mr. Arthur Albert Elphick, of Ongar Road,
Brentwood, from the refusal of Mr. Justice Foster last Novem-
ber to dismiss a second action brought by the plaintiff, Mr.
John Francis Hardy, of Steeple Road, Southminster, Essex,
on the ground that it was an abuse of the process of the
court.
Hardy v. Elphick; Court of Appeal; 27/3/1973.
167