The Gazette 1961 - 64

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to active participation. Donovan J., delivering a
concurring judgment, said that the appeal had the
support of the Law Society and guidance had been
requested as to the solicitor's position if a bank
lent money to finance litigation. In such a case
there was no maintenance if the advance was made
in the ordinary course of business. (The Times, July
3ist, 1962).
Hire Purchase Agreement: Whether " Agreed De
preciation " a Penalty.
In Lombank Ltd. v. Kennedy and Whitelaw and
Lombank Ltd. v. Crossan, the plaintiffs, a hire
purchase company, issued a specially indorsed writ
claiming a sum for " agreed depreciation" of a
motor car, the sub) ect of the hire purchase agreement.
The agreements had each provided for the calculation
of " agreed depreciation" with reference to a
percentage of the total hire purchase price. The
percentage was not less than 45% and not more
than 75% and it depended upon the length of time
the contract subsisted. In the first mentioned case
the contract was terminated by the plaintiffs for
failure to pay the monthly rentals. In the second
case the contract had been voluntarily terminated
by the hirer and in each case the plaintiffs sought to
mark judgment in default of appearance. Their
applications were refused on the ground that the
sum claimed in each writ was not a liquidated
demand in respect of which judgment could be
entered in default of appearance. On appeal it
was held (i) that in each case the amount calculated
under the " agreed depreciation " clause was a penal
sum rather than a genuine pre-estimate of damage
and (2) that the " penalty rule" can only come
into operation where there had been an actionable
breach of contract, and that it did not, therefore,
apply to the case where the contract was voluntarily
terminated by the hirer. Accordingly the appeal
was dismissed in the first mentioned case and
allowed in the second mentioned case. (1961
Northern Ireland Law Reports, page 192).
JLight of last speech to the Jury.
In Weller v. O'Brien the plaintiff was suing as
widow and administratrix of the estate of her
deceased husband and was claiming damages under
the Fatal Accident Acts. The action arose out of
her husband's death from injuries suffered in a road
accident alleged to have been caused by the negligent
driving of the defendant. Liability was admitted
and the action proceeded on the question of the
amount of damages. In cross-examination of the
plaintiff's witnesses certain documents which had
not been adduced in evidence on behalf of the plaintiff
were put to the witnesses by counsel for the defendant
and became exhibits. The defendant called no
witnesses and the question arose whether, by leading
documentary evidence, he had lost the right to the
last speech. The court adjourned to allow authorities
to be sought but no authority was cited in argument.
It was held by the trial judge that the defendant
had, by leading the documentary evidence while
cross-examining the plaintiff's witnesses, forfeited
the right to make the final address to the jury.
(1962 3 All England Law Reports, page 65.)
The Report of an expert should not be ordered by the Court
to be made available to the other side.
In this case, re Saxton deceased, Johnston & anor.
v. Saxton & anor., the plaintiffs, who were legally
aided, claimed in an action to be entitled to the whole
of the estate of a deceased testatrix. One of the issues
which arose was whether a written agreement signed
by the testatrix had in fact been signed by her. An
interlocutory application by the plaintiffs for
delivery of the agreement to an expert for examin
ation and microchemical tests was granted and the
judge, taking into account the expense involved
and bearing in mind that if the defendants also got
expert examination the costs were likely to fall on
them having regard to the fact that the plaintiffs
were legally aided, made it a condition of his order
that the results of the tests be communicated to the
defendants. The plaintiff appealed against this order
and it was held that the condition should be struck
out on the grounds that the judge should not have
had regard to the fact that the plaintiffs were legally
aided. It was held further that the report of an
expert employed by one side in litigations should
not be ordered (in the absence of consent) to be
produced to the other side although reports of
experts on each side were in practice often exchanged
by agreement, and the condition imposing obligation
on the plaintiffs could not therefore be validly
imposed. (1962 3 All England Reports, page 92.)
Conspiracy : Defamation by witnesses.
The plaintiff, a disbarred barrister, brought an
action claiming damages for conspiracy against two
police officers. He alleged that the defendants had
made statements in a report to the Director of Public
Prosecutions, in evidence to the Central Criminal
Court and at an inquiry before the Benchers of
Lincoln's Inn, as a result of which he had been
disbarred. The defendants in their defence took the
point that the report and their evidence were
absolutely privileged and so could not give rise to
any cause of action. It was held by the trial judge
that the plaintiff's action could not lie. The plaintiff
appealed and on appeal it was held by t urt of
Appeal (Sellers, Willmer and Diplock ) that
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