The Gazette 1961 - 64

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 the Court of Appeal (Sellers, Willmer and Diplock L.JJ.) that 33

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