The Gazette 1964/67

optical glass instruments under that name unless the goods were those of the plaintiffs, was begun by writ issued on zoth October, 1955 in the name of Carl-Zeiss-Stiftung as plaintiffs. On instructions by Dr. S. on behalf of the foundation, the defendants applied to stay all further proceedings on the ground that the action was brought without the plaintiffs' authority. It was accepted by both sides in the first instance that East German laws were valid either as those of the German Democratic Republic or of the Soviet Government, it being immaterial which gave them validity. Subsequently Her Majesty's Secretary of State certified that the German Democratic Republican Government were not recognised by the Government of the United Kingdom. On appeal:— held (i) that Dr. S. was not authorised by the power of attorney of 20th June, 1951 to cause proceedings to be instituted, because that instrument was really an appointment to act in several spheres, which merely defined the scope of these powers but did not sanction their use except in a properly authorised instance; nor had he authority in 1955, either as a member or mandatory of the Board of Management of the Optical Works, to authorise the action to be instituted, (ii) In the circumstances the order as to costs, which was discretionary, would be that there should be no costs below, but that the defendants of the present appeal should be paid by the plaintiff's solicitors on a common fund basis. Appeal allowed on a matter not raised before the Court below (Carl-Zeiss-Stiftung v. Rainer and Keeler Ltd. and Ors. (No. 2). (1965) i All E.R. 300. "The laws delays" Mr. Justice Roskil at the sitting of the High Court —Queen's Bench Division on—February i5th, 1965, stated that in view of the length of his written judgment—203 pages of single spaced typewritten foolscap—he proposed to state at once the con clusions which he had reached. He would cause much extra expense to the parties and occupy much public time were he to read his written judgment at length. In the circumstances of the case he did not propose to do that. A copy had been handed to the shorthand writer and copies were available for the parties. Copies were then handed to the parties " on the usual terms ". If reporters and others concerned wished to have copies, his Lordship stated that he hoped that it would be possible for the necessary arrangements to be made with the help of the parties and their solicitors, for his part his Lordship would gladly do what he could to assist. At the conclusion of his written judgment his Lordship stated that there were two matters he wished to mention. First that it was to be observed that the case, by far the longest in the High Court in 81

defendants in May 1959, and was unable to resume duty until January 1960. The Attorney-General and the Minister for Defence, as plaintiffs, brought a Civil Bill in the Circuit Court claiming on behalf of the people of Ireland £585 for loss of services of this sergeant, while he was incapacitated. The Circuit Judge awarded the full amount claimed, and the defendant appealed to the High Court. The appeal came before Henchy J. who submitted a case stated to the Supreme Court. The unanimous judgment of the Supreme Court was delivered by Kingsmill-Moore J. who stated inter alia :—" The first question to be considered was whether the Supreme Court was to accept and lay down the principle that it was to be bound irrevocably by an earlier decision. . . . There can be no legal obligation on this Court to accept ' Stare Decisis' as a rule binding upon it just because the House of Lords accepted it as a binding rule. . . . However desirable certainty, stability and predictability of law may be, they cannot in my view justify a Court of ultimate resort in giving a judgment which they are con vinced for compelling reasons is erroneous. In my opinion, the rigid rule of ' Stare Decisis ' must in a Court of ultimate resort give place to a more elastic formula." (All former Irish, English, Australian and Canadian cases on loss of services were then fully considered in detail.) " This mass of high authority, though not binding, to my mind is persuasive to the point of conclusiveness that public servants, be they in the armed forces, the police or the civil service, do not fall within the class of servants in respect of whom the action per quod servitium amisit lies. On the other hand, the field of indirect damage is so wide, so vague, and so disputable, that I feel that any change in the present law is a matter for the Legislature and not for the Courts. The Civil Bill therefore discloses no cause of action, and the questions submitted by Henchy J. do not arise, because no sustainable claim for damages has been pleaded." (Attorney-General and Minister for Defence v. Ryan's Car Hire Limited—Unreported judgment of the Supreme Court, nth December, 1964.) Solicitors' authority to institute proceedings In 1951 the Minister for Education of the land of Thuringia purported to appoint Dr. S. to the board of management of an optical works. A document called a power of attorney was signed on behalf of the Ministry of Education whereby the management of Carl-Zeiss-Stiftung and Weimar conferred authority on Dr. S. as agent to represent Carl-Zeiss-Stiftung in law suits. The present passing off action for an injunction to restrain the defendants from using the word " Zeiss" and from selling