736 [1964] 2 W.L.B. T H E W E E K L Y LAW BEPOBTS MAK.

27, 1961

C. A. the co-respondent should pay the costs of the suit, and continued:]
1964 In those circumstances it certainly does seem to me that, even
if there was at one time a collusive agreement, it is impossible to
NOBLE
B. say that in the event this suit was either presented or prosecuted
NOBLE AND in collusion with the co-respondent. It appears to me, therefore,
ELLIS
(No. 2) that the judge's conclusion with regard to the allegation of collu-
(NOTE). sion is one with which we cannot possibly interfere. I can see no
Willmer L.J. reason for criticising the judge's decision or the reasons on which
it was founded, and I would dismiss the appeal.

DANCKWKRTS and DIPLOCK L.JJ. agreed.

Appeal dismissed.
Solicitors: S. Sydney Silverman.
C. J. E.

[COURT OF APPEAL.]

C. A. L E W I S A N D A N O T H E R v. DAILY

196(1 T E L E G R A P H L T D . (NO. 2).

Jan. 13.
20, 21. [1958 R. No. 2366.]
Sellers,
Pearson and Practice—Consolidation of actions—Deconsolidation of actions—Libel
Russell L.JJ.
— T w o actions by two plaintiffs in respect of identical newspaper
articles—Actions consolidated on plaintiffs' application—Subse­
quent disagreement between plaintiffs—Whether jurisdiction to
deconsolidate actions — Whether deconsolidation proper — B.S.C.,
Ord. 15, rr. 5, 18. 1
Libel and Slander—Separate trials—Consolidated actions—Joint plain­
tiffs—Claim for special damage by one plaintiff only—Disagreement
between plaintiffs—Whether severance of claims justified—Whether
separate trials on liability and damages—B.S.G., Ord. 15, rr. 5, 18.
Solicitor—Consolidated action—Joint plaintiffs—Separate representa­
tion by each plaintiff—Whether permissible—Whether desirable in
libel action.

Two n a t i o n a l newspapers published similar articles on the same

day s t a t i n g t h a t t h e police were i n q u i r i n g into the affairs of a
company of which L. was then m a n a g i n g director and c h a i r m a n .
The company and L. each commenced an action for libel in respect
of the statements contained in the articles against the publishers of
each newspaper respectively, thereby i n s t i t u t i n g four separate
actions for libel. Subsequently, on L . ' s application, his two actions
were consolidated w i t h those of t h e company so t h a t the four

i E.S.C., Ord. 15, r. 5: " (1) If " embarrass or delay the trial or is
claims in respect of two or more " otherwise inconvenient, the court
causes of action are included by a " may order separate trials or make
plaintiff in the same action or by a " such other order as may be
defendant in a counterclaim, or if " expedient. . . . "
two or more plaintiffs or defendants B. 18: " T h e court may give the
are parties to the same action, and " conduct of any action, inquiry or
it appears to the court that the " other proceeding to such person as
joinder of causes of action or of " it thinks fit."
parties, as the case may be, may
MAR. 27, 1964 THE WEEKLY LAW REPORTS [1964] 2 W.L.R. 737

original actions were reduced to two actions (one against the pub- C. A.
lishers of each newspaper) in which L. and the company were joint
1964
plaintiffs. Both actions were tried before Salmon J. and a jury. 2
In the first L. was awarded £25,000 damages and the company LEWIS
£75,000; in the second a different jury awarded L. £17,000 and the v.
company £100,000. The newspaper publishers appealed to the Court DAILY
of Appeal, 3 which set aside those awards on the grounds of mis- TELEGRAPH
LTD.
direction by the judge and excessive damages, and ordered a new
(No. 2).
trial in both actions; that decision was affirmed by the House of
Lords, 4 the plaintiffs being ordered to pay the costs of the appeals
to the higher courts, while the costs of the abortive trials were to
abide the result of their retrial.
After the Court of Appeal had given its decision the company
went into liquidation and disputes arose between L. and the liqui-
dator as to their respective liability inter se for the costs which the
company and L. had been ordered to pay and also as to the com-
pany's claim for special damage which L. was unable to support.
The solicitors who had hitherto acted for both plaintiffs removed
themselves from the record. L. then instructed solicitors to repre-
sent him separately in the actions, and the liquidator did likewise;
those two solicitors gave notice of change accordingly to the central
office of the Supreme Court of Judicature, which placed them on
the record as the respective solicitors for the two plaintiffs.
On an application by the newspaper publishers asking, inter
alia, for the two actions to be consolidated into a single comprehen-
sive action, L. applied to deconsolidate the two actions so that the
original four actions should re-emerge. The master granted the
newspaper publishers' application, consolidated the two actions, and
refused L.'s application for deconsolidation. L. appealed to the
judge in chambers, who dismissed his appeal.
On appeal by L., who sought deconsolidation or, alternatively,
a joint trial on liability and separate trials on damages: —
Held, dismissing the appeal, (1) that, although in a proper case
the court could in effect order the deconsolidation of a consolidated
action by suitable use of the powers contained in R.S.C., Ord. 15,
rr. 5, 18, deconsolidation was not appropriate to the present case
where, there being no conflict of interest between the plaintiffs, it
was manifestly more convenient to resolve all the issues in dispute
(which were similar) in a single trial by a single tribunal; and
that, accordingly, there would be no deconsolidation or separate
trials on damages (post, pp. 744, 745, 748).
(2) That co-plaintiffs in a consolidated action were not entitled
to separate legal representation without leave of the court, so that
the action as it existed was not properly constituted; and, there
being no reason for granting leave for separate representation, the
action could not proceed for trial until a single solicitor was placed
on the record for both plaintiffs (post, pp. 746, 749, 750).
Wcdderbum v. Wedderburn (1853) 17 Beav. 158 applied.

INTERLOCUTORY APPEAL from Eoskill J., sitting in chambers.

The following s t a t e m e n t of facts is taken substantially from
the judgment of Pearson L . J .
The plaintiff, J o h n Lewis, was the managing director of the
plaintiff company, Eubber I m p r o v e m e n t L t d . , until t h a t com-
pany went into liquidation in 1963.
2 4
The Times, July 21, 1961. [1963] 2 W.L.R. 1063; [1963]
a [1963] 1 Q.B. 340; [1962] 3 2 All E.R. 151, H.L.
W.L.R. 50; [1962] 2 All E.R. 698,
C.A.
738 [1964] 2 W.L.R. THE WEEKLY LAW REPORTS MAR. 27, 1964

C. A. On December 28, 1958, the " Daily Telegraph " published an

1964 article as follows: " I n q u i r y on firm by city police. Daily
" T e l e g r a p h reporter. Officers of the City of London F r a u d
„ " Squad are inquiring into the affairs of Rubber I m p r o v e m e n t
^ DAILY " L t d . and its subsidiary companies. The investigation was
LTD. " requested after criticisms of the chairman's statement and the
(No. 2). " accounts by a shareholder at the recent company meeting. The
" chairman of the company, which has an authorised capital of
" £1 million, is Mr. J o h n Lewis, a former Socialist M . P . for
" B o l t o n . " On the same day the " D a i l y M a i l " published an
article in similar, although not quite identical, terms.
On that same day four actions for libel were commenced, and
the parties w e r e : in the first action the plaintiff company against
the Daily Telegraph L t d . , as publishers of the " Daily Tele-
" graph " ; in the second action the plaintiff Lewis against the
Daily Telegraph L t d . ; in the third action the plaintiff company
against Associated Newspapers L t d . , as publishers of the " Daily
" Mail " ; in the fourth action the plaintiff Lewis against Associated
Newspapers L t d .
On J a n u a r y 18, 1959, the four statements of claim were
delivered, and they very closely resembled each other and were
all signed by the same counsel. In each s t a t e m e n t of claim para-
graph 1 described the plaintiff company or the plaintiff Lewis or
both of them, paragraph 2 described the defendants, paragraph 3
set out the libel, paragraph 4 alleged an innuendo and gave par-
ticulars, and paragraph 5 alleged damage, which was only general
damage. The alleged innuendo in the action of the plaintiff
company against the Daily Telegraph L t d . and also in the plaintiff
company's action against Associated Newspapers L t d . was in
these t e r m s : " By the said words the defendants m e a n t and were
" understood to mean that the affairs of the plaintiffs and/or its
" subsidiaries were conducted fraudulently or dishonestly or in
" such a way t h a t the police suspected t h a t their affairs were
" so c o n d u c t e d . " The alleged innuendo in each of the actions of
the plaintiff Lewis was necessarily somewhat longer, as it had to
refer both to him and to the plaintiff company, but substantially
it was to the same effect.
The four defences, delivered on J a n u a r y 29, 1959, were in
almost identical terms and were all signed by the same counsel.
E a c h of t h e m admitted paragraphs 1 and 2 of the statement of
claim and publication of the words complained of, but alleged
that the words in their natural and ordinary meaning were true,
and denied that the words bore or were understood to bear or
were capable of bearing the meanings attributed to t h e m in the
alleged innuendo. The alleged damage was denied; and there
were pleas in mitigation of damage.
On May 29, 1959, on the application of the plaintiff Lewis,
two consolidation orders were m a d e . The actions of the plaintiff
company and the plaintiff Lewis against the Daily Telegraph
L t d . were consolidated into one action. The actions of the
MAR. 27, 1964 THE WEEKLY LAW EEPOBTS [1964] 2 W.L.E. 739

plaintiff company and the plaintiff Lewis against Associated C. A.

Newspapers Ltd. were similarly consolidated into one action. -^g^
Plainly those two consolidation orders were properly made in the — ~
situation then existing, and nobody contended otherwise. „
There was a long delay, which was not explained, before the r i DAILY
two actions came to trial. On July 21, 1961, they were tried LTD.
before Salmon J . and a jury, 5 the action against the Daily (Nr°- 2 )-
Telegraph L t d . being tried first and the action against
Associated Newspapers L t d . immediately after it. The two
actions were tried by different juries. In each action Salmon J .
held t h a t the words complained of were capable of meaning t h a t
the plaintiff company and the plaintiff Lewis had behaved
fraudulently, and he so directed the jury. The verdicts were in
favour of the plaintiffs, and the damages were: against the
Daily Telegraph L t d . £25,000 for the plaintiff Lewis and
£75,000 for the plaintiff company, and against Associated News-
papers L t d . £17,000 for the plaintiff Lewis and £100,000 for the
plaintiff company.
I n each of the two actions the defendants appealed to the
Court of Appeal, 6 which set aside the verdicts and judgments,
on the grounds of misdirection by the judge and also because
the damages were excessive. I t ordered a new trial and directed
t h a t the defendants' costs of the appeal be paid by the plaintiffs,
and that the costs of the trial should abide the result of the new
trial.
The plaintiffs appealed to the House of Lords, 7 which dismissed
their appeals, affirming the decision of the Court of Appeal, and
directed t h a t the defendants' costs of the appeal to the House
of Lords should be paid by the plaintiffs.
The Court of Appeal and the House of Lords held that the
words complained of were incapable of meaning t h a t the plaintiff
company or the plaintiff Lewis had behaved fraudulently.
By applications dated respectively July 29 and 30, 1963, the
defendants in each of the actions applied for further directions
for striking out the alleged innuendo, for further discovery, for
the plaintiff company, which was now in voluntary liquidation
(a creditor's winding up), to give security for costs, for further
and better particulars of the statement of claim, and for consolida-
tion of the two existing actions into only one action.
The summonses were addressed to the same plaintiffs'
solicitors, who had hitherto been acting for both the plaintiff
company and the plaintiff Lewis. Disputes, however, had arisen
between the plaintiff company and the plaintiff Lewis, mainly
in respect of their liability to pay to the defendants the costs of
the unsuccessful appeals, and the solicitors who had hitherto
acted for both plaintiffs removed themselves from the record;
pursuant to instructions received from their clients Tringhams
placed themselves on the record as acting for the plaintiff Lewis,
7
= The Times, July 21, 1961. [1963] 2 W.L.E. 1063.
« [1963] 1 Q.B. 340.
740 [1964] 2 W . L . E . T H E W E E K L Y LAW EEPOETS MAR. 27, 1964

C. A. and Bower, Cotton & Bower placed themselves on the record as

1964 acting for the plaintiff company. Both those solicitors gave
notice of change of solicitors to the central office of the Supreme
LEWIS
v.
Court of Judicature.
DAILY On September 5, 1963, Tringhams, acting for the plaintiff
TELEGRAPH
LTD.
Lewis only, gave notice to the plaintiff company and their
(No. 2). solicitors, and to the defendants and their solicitors, that the
plaintiff Lewis would apply for an order that his action against
the defendants in each case be deconsolidated from the plaintiff
company's action against the same defendants. There was a
separate notice in each of the two actions.
The plaintiff Lewis sought to have the existing two actions
deconsolidated so that the original four actions would re-emerge
as separate actions, whereas the defendants were seeking to have
the existing two actions further consolidated into only one action,
so that there would be a comprehensive consolidation of all four
actions.
All the applications were heard by Master Jacob on September
16, 1963. He rejected the plaintiff Lewis's application for
deconsolidation of the two existing actions. He granted the
defendants' application for the comprehensive consolidation.
Master Jacob also gave the plaintiffs in each of the consolidated
actions leave to deliver amended statements of claim, with
consequential leave to the defendants to deliver amended defences
if so advised. He ordered further and better particulars of the
statement of claim, to state whether any special damage was
alleged, and, if so, to give particulars of it. He made no order
for discovery against the plaintiff Lewis on the plaintiff company
undertaking to make a further affidavit of documents. He
refused to order security for costs against the plaintiff company.
On October 1, 1963, the plaintiff company's solicitors wrote
to the plaintiff Lewis's solicitors and said: " I n connection with
your appeal from the master's order refusing your client's
application for deconsolidation, the [committee of inspection]
appreciate Mr. Lewis's reluctance to be joint plaintiff with a
liquidator, and they also appreciate that were it not for the
fact that Mr. Lewis is a plaintiff, the liquidator would have
been ordered to give security. In these circumstances, we are
instructed to say that the liquidator will indemnify Mr. Lewis
in respect of an order for costs made against the joint
plaintiffs in respect of the retrial, that is, from the date in June
1963 when the actions were set down for rehearing, to the
extent of 80 per cent, of the amount of such costs."
On October 30, 1963, the plaintiff Lewis's solicitors replied to
the plaintiff company's solicitors by letter which refused the offer
made by the company to pay 80 per cent, of the costs of the
rehearing, and proceeded, inter alia: " Apart from that, however,
" we would point out that the offer made does not cover the
" possibility of our client succeeding in his claim and being
" awarded costs and your clients not succeeding in their claim
MAB. 27, 1964 T H E W E E K L Y LAW BEPORTS [1964] 2 W.L.E. 741

" and having costs awarded against them. If the matter were C. A.
" to remain consolidated, the ultimate effect of this could be that 1964
" p a r t of the defendants' costs which may be awarded against
LEWIS
" the company, would be set off against any costs awarded to v.
" our client and, therefore, our client would face the risk of DAILY
TEI.EGRArH
" losing costs which may be awarded to him. Furthermore, the LTD.
" refusal of the liquidator's committee of inspection to authorise (No. 2).
" the liquidator.to pay the company's share of the costs of the
" appeal, and yet have the benefit of the appeal, is wholly unfair
" and has placed our client in a position whereby a judgment for
" an amount of money, of which the greater part should have
" been paid by the company, can be enforced against him
" personally . . . Prior to the hearing of our client's application
" for deconsolidation before the master we understood from you,
" and our client understood from the liquidator, that the applica-
" tion for the order for further discovery which the defendants
" were seeking, would be opposed. On the hearing of the
" summons, however, the liquidator did not oppose the applica-
" tion and, in fact, dealt with the application by way of giving
" an undertaking to file a further affidavit of documents, so that
" no further order was made in respect of the defendants'
" application." There was a further complaint in the letter that
on the hearing before the master the plaintiff company had
through its counsel opposed the application for deconsolidation.
The plaintiff Lewis appealed to Eoskill J., judge in chambers,
against the master's refusal of his application for deconsolidation,
but Eoskill J. dismissed the appeals. The plaintiff Lewis appealed
to the Court of Appeal. The liquidator supported the defendants
in opposing the appeal.

Neil Lawson Q.C. and Eric Myers for the plaintiff Lewis.
Douglas Lowe for the liquidator.
Lord Gardiner Q.C. and Hugh Davidson for the Daily
Telegraph Ltd., the first defendants.
Lord Gardiner Q.C. and David Hirst for Associated News-
papers Ltd., the second defendants.

The following case, in addition to the cases referred to in the

judgments, was cited in argument: Daws v. Daily Sketch
and Daily Graphic Ltd.6

SELLERS L.J. I will ask Pearson L.J. to give the first

judgment.

PEARSON L.J. The appellant in this appeal is the plaintiff

Lewis, and he is appealing against refusals by Eoskill J. to make
what have been called " deconsolidation orders " in certain
actions. To make the position clear, I must trace the history
of the relevant actions and proceedings.
« [I960] 1 W . L . E . 126; [1960] 1 All E.E. 397, C.A.
742 [1964] 2 W.L.E. THE WEEKLY LAW BBPOETS MAB. 27, 1964

C. A. [His Lordship stated the facts set out above, observed that it
196-1 was clear from the letter of the plaintiff Lewis's solicitors of
October 80, 1968, that there were a number of disagreements
LEWIS
v. between the two plaintiffs, and continued: ] The plaintiff Lewis is
DAILY still wanting deconsolidation, in order t h a t he and the plaintiff
TELEGRAPH
LTD . company may cease to be co-plaintiffs. If the plaintiff Lewis
(No. 2). succeeds in this appeal, the master's order for comprehensive
Pearson l.J. consolidation will be, so to speak, undermined, and for the
moment there will be four separate actions. However, the plain-
tiff Lewis has by his counsel made it clear that his sole object is
to be severed from the plaintiff company, and he would not
object to a consolidation of his own two actions into one con-
solidated action against both defendants. Moreover, if this appeal
fails, the plaintiff Lewis would not object to the comprehensive
consolidation already ordered by the master.
I n the exercise of his discretion, Boskill J. decided not to
make a deconsolidation order. H e dealt first with a question of
law, as it had been argued that there was no jurisdiction in the
court to " deconsolidate " an action. H e accepted Mr. Lawson's
argument that there is an inherent power in the court to vary
any order of an interlocutory nature heretofore made. He
referred to a passage in Halsbury's Laws of England, 3rd ed.
(1958), Vol. 22, p . 793. H e also referred to a passage in the
judgment of Scrutton L . J . in Horwood v. Statesman Publishing
Co. Ltd.1
I n my view, the judge's decision on the question of law was
correct to the extent that some order modifying the further
operation of the consolidation order could have been made, but the
s t a t e m e n t of the principle involved was too widely expressed. 2
I do not wish to go into that in any detail because the question
has not been argued, or has not been substantially argued, on the
hearing of this appeal. Assistance can be derived from the fol-
lowing passage in the Annual Practice (1964), p . 465, which
appeared in former editions and remains unchanged in the present
edition: " Interlocutory orders stand in the same position as final
" orders, and cannot be altered save by means of an appeal . . .
" save in certain cases expressly provided for . . . " Then there
is a reference to E . S . C . , Ord. 87, Ord. 24, and other orders, after
which the note goes o n 3 : " B u t it appears t h a t although the
" substance of the order cannot be changed, the method of giving
" effect to it may b e . " The most important authorities are
Mullins v. Howell* Ainsuiorth, v. Wilding,5 Prcstney v. Colches­
ter Corporation,6 Kelsey v. Doime, 7 and Light v. William West &
Sons Ltd.6

1
(1929) 45 T.L.E. 237; 141 L.T. « [1896] 1 Ch. 673, 677, 679; 12
54, 58, C.A. T.L.B. 270.
2 6
Boskill J . said that the court (1883) 24 Ch.D. 376, 382, 384,
had an inherent jurisdiction to de- C.A.
consolidate the action. ■> [1912] 2 K.B. 482, 489, C.A.
3 pp. 466-470. s [1926] 2 K.B. 238, 244, 245; 42
4
(1879) 11 Ch.D. 763, 766. T.L.B. 311, C.A.
MAR. 27, 1964 THE WEEKLY LAW REPORTS [1964] 2 W.L.R. 743

The most enlightening passage, to my mind, is in the jud'g- C. A.

m e n t of Cotton L . J . in Prcstncy v. Colchc8tcr Corporation," ^g^
where, after an order had been made for production of documents
for inspection in the office of solicitors in London, it appeared „_
more convenient and preferable that the production of the docu- DAILY
T'FT F f l R A P f T
m e n t s should be made in Colchester, and an order to that effect jj T D .
was made, varying the previous order. Cotton L . J . s a i d 1 " : (^o. 2).
' Now I think that probably the order was wrong in form. Pearson L.J.
' There was no power in him to hear by way of appeal an order
' which had been made by his predecessor, nor even by himself,
' after the lapse of time which had occurred; and the proper
' form of order, I think, would have been this, that notwith-
' standing the directions contained in the previous order the
' defendants should produce the documents which by that order
they were directed to produce in London at Colchester at the
' place named. The order being in that form I have no doubt
' that Mr. Justice Pearson had full jurisdiction and power to
' make such an order because the former order did not decide
' anything as of right between the parties, but merely directed
' how the documents which are mentioned in the affidavit should
' be produced."
Applying the principle to the present case, I would say that
the consolidation order properly made by the master in May,
1959, cannot now be appealed from, and cannot be set aside or
cancelled. I t is, however, an order having a continuing opera-
tion, being worked out or working itself out as the action proceeds,
and if some new situation has arisen in which convenience or
justice requires some modification or adaptation of the original
order to fit the new situation, the appropriate powers conferred
by the Eules of the Supreme Court can be used for that purpose.
E . S . C . , Ord. 15, r. 5 (1), of the new rules, which came into
force on J a n u a r y 1, 1964, provides: " If claims in respect of two
" or more causes of action are included by a plaintiff in the same
" action or by a defendant in a counterclaim, or if two or more
" plaintiffs or defendants are parties to the same action, and it
" appears to the court t h a t the joinder of causes of action or of
" parties, as the case may be, may embarrass OD delay the trial
" o r is otherwise inconvenient, the court m a y order separate
" trials or make such order as may be e x p e d i e n t . " E u l e 18 of
the same Order provides: " The court may give the conduct of
" any action, inquiry or other proceeding to such person as it
" thinks fit."
I t is also material to observe the wide scope of the new
Order 4, r. 10, which provides: " W h e r e two or more causes or
" m a t t e r s are pending in the same division, then, if it appears to
" the court—(a) that some common question of law or fact arises
" in both or all of them, or (b) t h a t the rights to relief claimed
" therein are in respect of or arise out of the same transaction or

8 10
24 Ch.D. 376. Ibid. 384.
744 [1964] 2 W.L.R. T H E W E E K L Y LAW REPORTS MAR. 27, 1964

C A.. " series of transactions, or (c) that for some other reason it is
1904 " desirable to make an order under this rule, the court may order
" those causes or matters to be consolidated on such terms as it
LEWIS
v.
thinks just or may order them to be tried at the same time, or
DAILY " one immediately after another, or may order any of them to be
TELEGRAPH
LTD.
" stayed until after the determination of any other of them."
(No. 2). By suitable use of the powers conferred, I think that any order
Pearson L.J. that might be convenient and desirable could be made in this
case. It may be misleading to call any such order a " deconsoli-
" dation order," because I do not think there would be really
deconsolidation. However, I must use the phrase in the present
case, as the application was in terms for a " deconsolidation
" order." Mr. Neil Lawson has explained in these appeals that
he is now asking for orders under E.S.C., Ord. 15, rr. 5 and 18;
and he produced this morning a fuller draft of the orders for
which he is asking, being orders which probably could be made
under the rules as they now are.
The judge, in the exercise of his discretion, refused to make a
deconsolidation order. He cited another passage from the judg-
ment of Scrutton L.J. in Horwood's case, 11 citing the following
observations of Lord Stemdale M.R. in Payne v. British Time
Recorder Co. Ltd. and W. W. Curtis Ltd.12: " ' T h e result of
' the later decisions is that you must look at the language of the
" ' rules and construe them liberally, and that where there are
common questions of law or fact involved in different causes
" ' of actions you should include all parties in one action, subject
" ' to the discretion of the court, if such inclusion is embarrassing
" ' to strike out one or more of the parties. It is impossible to
" ' lay down any rule as to how the discretion of the court ought
" ' to be exercised. Broadly speaking, where claims by or against
" ' different parties involve or may involve a common question
" ' of law or fact bearing sufficient importance in proportion to
" ' the rest of the action to render it desirable that the whole of
" ' the matters should be disposed of at the same time the court
" ' will allow the joinder of plaintiffs or defendants, subject to its
" ' discretion as to how the action should be tried.' " That is a
good test, and is consistent with the provisions of the new
Ord. 4, r. 10.
How does the matter stand on the pleadings? Amended
statements of claim have been delivered, amended defences have
not yet been delivered, but perhaps they will be. In each state-
ment of claim paragraph 4 has been altered, as it had to be,
because the allegation that the words conveyed an imputation of
fraud has been ruled out by the House of Lords' decision. The
plaintiffs must now rely on some lesser defamatory meaning, on
the basis of suspicion or grounds for suspicion or grounds for an
inquiry, or something on those lines. The defendants may

11
141 L.T. 54, 57. " [1921] 2 K.B. 1, 16; 37 T.L.E.
295, C.A.
MAR. 27, 1964 T H E W E E K L Y LAW KEPOBTS [1964] 2 W.L.E. 745

persist in their plea of justification, with or without the altera- C. A.

tion. W e cannot foresee exactly how the contentions will be 1964
developed. B u t I cannot see any divergence of interests or even
LEWIS
substantially any divergence of contentions as between the plain- v.
tiffs on any issue affecting liability, and it seems reasonably DAIL?

clear that they will have exactly the same interests on any such TEfiEGRAPHLTD.
issue. Therefore, the plaintiff company's action and the plaintiff (No. 2).
Lewis's action manifestly ought to be tried together, in order Pearson L.J.
t h a t the one issue or set of issues may be tried once for all and
not tried twice over by different tribunals with possibly different
results. If consolidation is maintained, it will have t h a t effect.
I t is true t h a t the amended paragraph 4 in the s t a t e m e n t of
claim of the plaintiff Lewis differs in wording from the amended
paragraph 4 of the statement of claim of the plaintiff company,
but I cannot find any substantial divergence. The two obviously
could be reconciled by further amendment of the pleadings.
I n respect of the claims for damages there is a difference,
but not a conflict of interest. The plaintiff Lewis claims only
general d a m a g e s : the plaintiff company claims special damage
in the way of loss of business, diminished turnover, and losses
instead of profits. Success of either plaintiff could only help and
not hinder the success of the other. The plaintiff Lewis does not
approve of the way in which the plaintiff company has formulated
its claim, but, of course, the plaintiff company is entitled to
formulate its claim as it thinks fit.
Thus, examination of the pleadings supports the contention
that the consolidation should continue.
There were arguments in respect of costs. I t was said that it
would be a hardship on the plaintiff Lewis if there were an order
for costs against the plaintiffs jointly, as the plaintiff company is
in liquidation and has a large deficiency of assets in relation to
liabilities. As the judge pointed out, the letter of October 1,
1963, 13 supplied the substantial answer to that point, as the
liquidator offered to pay four-fifths of any order for costs made
against the joint plaintiffs in respect of the retrial. Moreover,
we have to think also of the defendants' interests. If there were
separate trials, their costs would be m u c h increased, and if the
defendants were successful they would be unlikely to recover
their costs from the plaintiff company; and there is no evidence
as to the prospects of recovering costs from the plaintiff Lewis.
I n respect of costs there is a further point in favour of
continuing the consolidation. The Court of Appeal direction, 1 4
affirmed or repeated by the House of Lords, 1 5 as to the costs of
the first trial, was that they should " abide the result of the
" r e t r i a l . " Such an order normally would have the effect that
the order as to the costs of the first trial would be the same as
the order for the costs of the retrial: Brotherton v. Metropolitan
District Railway Joint C'ommittce 16 ; and see the Annual Practice
15
'3 Ante, p. 740. [1963] 2 W.L.E. 1063.
I6
i* [1963] 1 Q.B. 340. [1894] 1 Q.B. 666, C.A.
746 [1964] 2 W.L.B. THE WEEKLY LAW REPORTS MAR. 27, 1964

C. A. (1964), p. 1999/255. I t is possible, however, that the word

1964 " a b i d e " can be read literally as meaning " w a i t f o r " rather
than " follow," and that the trial judge will have some discretion
„ as to the order to be made in respect of the costs of the first trial
DAILY in the light of or on the basis of the order made as to the costs of
LT'D the retrial. However that may be, it m a y well be easier to apply
(No. 2). the direction that the costs of the first trial are to abide the
Pearson L.J. result of the retrial if there is only one retrial. If there were two
retrials some difficult problems might arise.
As to delay, the discovery being given by the plaintiff com-
pany is apparently causing some delay, but it is small in com-
parison with delays in the past which seem to be attributable to
the plaintiff Lewis, who was then managing director of the
plaintiff company.
The real problem, however, arises in respect of representation.
On the face of it the position is very odd. The actions, though
supposed to be consolidated, are now proceeding in several
respects as if they were separate actions. The pleadings as
amended are still the separate pleadings of the original actions.
Discovery is being given separately by the plaintiff company.
There are separate solicitors and separate junior counsel for the
plaintiff Lewis and the plaintiff company. Mr. Neil Lawson is
appearing only for the plaintiff Lewis, though the plaintiff
company would be willing t h a t he should appear for it also.
W e have been urged on behalf of the plaintiff Lewis, and to
some extent on behalf of the plaintiff company also, to permit
the separate representations to continue and to make consequen-
tial provisions or suitable directions to fit that situation. But
.1 think it is right to go further back and consider whether it was
right in the first instance that such separate representation should
be created. I n my view, it was not regular, and not in accordance
with the proper practice, t h a t two firms of solicitors should be
placed on the record as representing the plaintiff Lewis and the
plaintiff company separately. The first move appears to have
been by the solicitors for the plaintiff Lewis in putting themselves
on the record as solicitors for him only. That was followed, not
unnaturally, by a similar move by the plaintiff company's
solicitors putting themselves on the record as the plaintiff
company's solicitors only. B u t then the question arises whether
that is something which can properly be done or something which
ought not to be done except with the leave of the court. There
is a note in the Annual Practice (1964), p . 1802, under the
beading " Change by some of several plaintiffs " which says: " I t
" is not the practice of the central office to receive a notice to
" change solicitors for some out of several plaintiffs. There can
" only be one solicitor for the plaintiffs, unless otherwise specially
" ordered." Then there is a n o t e : " (Decided by Practice
Master, November 27, 1888; and see Wedderburn v.
Weddcrbum 1 7 ) . "
17
(1853) 17 Beav. 158.
MAR. 27, 1964 THE WEEKLY LAW REPORTS [1964] 2 W.L.R. 747

The rule is clearly stated in Wcdderburn v. Weddcrburn, C. A.

where Sir John Bomilly M . E . s a i d 1 8 : " Mr. and Mrs. Hawkins 1964
" m a y , in concurrence with the other four co-plaintiffs, remove
LEWIS
" their solicitor, and the other four m a y allow him to conduct the
v.
" proceedings for all. B u t if the plaintiffs do not all concur, DAILY
TELEGRAPH
" Mr. Hawkins cannot take a course of proceeding different and LTD.
" apart from the other plaintiffs, for the consequence would be, (No. 2).
" t h a t their proceedings might be totally inconsistent. When Pearson L.J.
" p e r s o n s undertake the prosecution of a suit, they m u s t make
" up their minds whether they will become co-plaintiffs; for if
" they do, they m u s t act together. I cannot allow one of several
" plaintiffs to act separately from and inconsistently with the
" others."
That is the proper rule of practice, and it has plainly been
departed from on the plaintiffs' side in this case. I t is quite
true t h a t since then the defendants have not sought to take any
steps to rectify the position. Lord Gardiner has said t h a t it was
not very clear what steps they ought to have taken. I t is
conceivable t h a t an application to stay the action until the
constitution of the action was rectified and put in proper order
might have been an appropriate remedy. B u t I am not seeking
to give any firm decision about that. There is also this fact,
t h a t the defendants have acquiesced in the position. I t m a y be
contended that they have waived any rights which they might
have had.
However, that could not be the final answer in the present
case, because there is the interest of the court itself in having
actions properly constituted, so that regular trials may be had;
and here is an irregular situation. I am not saying that it would
be impossible ever in any case to have separate representation,
wholly or partially, in a consolidated action. I t is not very easy
to envisage such cases; but they can arise, and an illustration is
Healey v . A. Waddington & Sons Ltd.1* I n that case eight
actions were consolidated as to the issue of liability but separate
representation was allowed as to the issue of damages. T h a t
is an interesting case, and it shows the possibility of at any rate
partial separate representation in consolidated actions. B u t it
is, in m y view, not a good guide or a good precedent for the
present case, because there the trials were going to be by judge
alone and were in respect of an accident, whereas here we are
faced with an action or actions for libel to be tried by judge
and jury. I t would be extremely inconvenient and awkward, so
far as one can see, to have any separate representation in a
m a t t e r of t h a t kind. Many difficult problems would arise. How
would the opening speech (or speeches) be made? Would it be
right t h a t the plaintiffs should have as against the defendants
the advantage of two opening speeches instead of one? Then,
in the conduct of the case, if there were two plaintiffs separately

9
« 17 Beav. 158, 159. [1954] 1 W.L.R. 688; [1954] 1
E.R. 8C1D., C.A.
748 [1961] 2 W.L.E. THE WEEKLY LAW BBPOBTS MAR. 27, 1961

C. A. represented, would each plaintiff be allowed to cross-examine the

lgt ;4 other plaintiff's witnesses and have the advantage of being able
(as Lord Gardiner pointed out) to put leading questions to a
v witness who would be substantially on the same side? Again,
DAILY when the defendants' witnesses were called, would it be right
LTD t h a t both plaintiffs, separately represented, should be allowed to
(No. 2). cross-examine those witnesses? The same problem would arise
Pearson L.J. m respect of the final speeches at the end of the case. Would
separately represented plaintiffs be allowed to have two speeches?
I t was suggested in the interesting draft order which Mr.
Lawson very helpfully submitted this morning t h a t there could
be separation of the issue of liability from the issue of damages.
That course is perfectly possible and can conveniently be done
in some cases, but not, in my view, in an action for libel,
because in an action for libel questions of liability and questions
of damages are in practice very closely connected and cannot
conveniently be separated, particularly because there is a jury
involved. The m a t t e r of interest to a jury is how m u c h should
be awarded to each particular plaintiff, and they would not be
expected to take much interest in a somewhat theoretical division
between the issue of liability on the one hand and t h a t of
damages on the other.
I t seems to me, therefore, that there are very strong reasons
against allowing deconsolidation in this case. I have considered
the m a t t e r on its own merits but, of course, the proper question
for this court is whether there were materials on which the judge
could properly decide, in the exercise of his discretion, t h a t no
deconsolidation order should be m a d e . I n m y view, there are
ample reasons in support of his order exercising his discretion,
and his exercise of discretion ought not to be interfered with.
W e have, of course, considered what the future progress of
this action or this set of actions ought to be. I have not been
persuaded that there is any possibility of achieving a satisfactory
trial with some system of separate representations. I t is clear
in the first place t h a t the actions ought to be tried together, as
one action. The issues of liability seem really to be exactly the
same in the two actions or in all four actions. There is really
no distinction, I think, between the question as it affects the
plaintiff Lewis and the question as it affects the plaintiff company,
or between the action against the defendants, the Daily Telegraph
L t d . , and the action against Associated Newspapers L t d . I t is
really all one question: W h a t defamatory meaning is conveyed
by the words complained of? Also, if there is a plea of justifica-
tion by the defendants, does it extend far enough or not? I n
view of that consideration, it is quite plain t h a t there ought to
be a single trial. I t is not really practicable in a case of this
kind to separate the trial of the issue as to liability from the
trial of the issue as to damages.
I fail to see how separate representation is workable on the
special facts of this case. Moreover, as I have pointed out, it
APRIL 3, 1964 THE WEEKLY LAW REPORTS [1964] 2 W.L.R. 749

was wrong for the de facto separate representation to be created C. A.

in this case. W h e n the solicitors, who had been acting for the 1964
plaintiff company and the plaintiff Lewis jointly throughout
Law is
the first trial, found it necessary to withdraw from the record, the v.
two plaintiffs should have concurred in appointing a new firm DAILY
TELEGRAPH
of solicitors to represent the two of them. T h a t is still, in m y LTD.
(No. 2).
view, what ought to be done, and the only satisfactory basis.
Until t h a t is done the action is not properly constituted, and Pearson L.J.

if the plaintiffs seek to take the case to trial with this constitu-
tional defect, they will be in very grave difficulty indeed. I t is
open to the plaintiffs, if so advised, to apply for some special
order. Although the consolidation order remains in force, it can
have super-imposed upon its practical operation some further
order to adapt the consolidation order to the actual requirements
of the situation. B u t I am far from seeking to encourage any
application for complete or partial separate representation, because
I am unable to see how separate representation could possibly
work.
I n t h a t situation, the only possible decision, to m y mind, is
t h a t the appeals should be dismissed and t h a t the consolidation
order should remain in force. T h a t involves t h a t the full
comprehensive order made recently should regulate the position.
I n m y view, this appeal should be dismissed.

E U S S E L L L . J . : I see no sufficient ground for reversing the

decision to maintain the pre-existing consolidation of the two
actions against the Daily Telegraph L t d . and the pre-existing
consolidation of the two actions against Associated Newspapers
L t d . ; and it is basically those consolidations to which objection
is taken.
I will only add to what has been said a word on the question
of representation.' Prima facie, co-plaintiffs, whether in one
original action or in an action consisting of consolidated actions,
m u s t be jointly represented by solicitor and counsel. • I n a proper
case, an order m a y be made authorising severance in point of
representation, but this m u s t be, I think, rare and should only
be done to avoid injustice. Here a suggestion is made t h a t a
special order should be made for separate representation at the
trial of the consolidated actions, either wholly or on the issue
of damages. I do not think it would be right to make ah order
for complete separate representation; it would impose an unfair
burden on the defendants which such differences as there are
between the two plaintiffs do not justify. Common representa-
tion on liability, followed by separate representation on damages,
is not really a practical idea in defamation proceedings. Nor,
indeed, quite apart from that, do the facts, in m y view, begin
to justify separate representation on damages. The case of the
VOL. 2 40
750 [1964] 2 W.L.R. T H E W E E K L Y LAW REPORTS APRIL 3, 1964

C. A. plaintiff Lewis for damages due to him and the case of the
1964 plaintiff company for damages due to it can be prepared and
presented perfectly well by the same solicitors and counsel. At
LEWIS
v. present the plaintiffs have separate solicitors on the record, and
DAILY appear by separate counsel. No order permitting that has ever
TELEGRAPH
LTD. been made, though for the purpose of these interlocutory proceed-
(No. 2). ings the court has permitted it. It seems to me that if the
RnBsell L.J. plaintiffs turn up at the trial and no solicitor and counsel can
say that they appear for both the plaintiffs, and no order
permitting separate representation has been made, their case
cannot be opened and the two actions will be dismissed. With
this thought in mind, they will no doubt put their house in order.
I agree that the appeal fails; and I only add that I think
that Healey v. A. Waddington & Sons Ltd.20 can usefully also
be read in the All England Law Eeports.

SELLERS L.J. I also agree. The confusion in this case has

been very largely brought about by what was done irregularly
in or- about July, 1963, when first the plaintiff Lewis changed
his solicitors and became separately represented from his
co-plaintiff, the company, and a little later the company instructed
a separate solicitor. They had previously had a common solicitor
representing both, which was in accordance with the rules and
the authority cited by Pearson L.J.
It is that confusion which has been the basis of a good deal
of the argument which we have heard in this case. I entirely
agree with the views which have been expressed—that, as the
matter stands, it is so irregular that it is not in a proper state
to go for trial and should, I think, without doubt be rectified.
It may well be that a method can be found for applying for an
order of the court to have separate representation. I do not
want to prejudge it. As far as I can see there is no justification
for granting it as at present advised. I can see no reason why
one firm of solicitors, regularly appointed to act on behalf of
both the plaintiffs, should not appear for them, and instruct
counsel likewise, to appear and present the case- of both of them
before the court as each of them desires it presented. That
would be regular. There is, as I see it, no conflict, either on
liability or on damages. If there were, the situation would be
different.
There has been prolonged argument, but in substance I
cannot think that the judge could have come to any other
conclusion on the facts of this case. Not only do I think it was
well within his discretion, but I think that if it had come to me
to consider it I should have decided this matter in the same
way. It is a relatively simple case, where the issues can be
« [1954] 1 W.L.R. 688; [1954] 1 All E.R. 861n.
APRIL 3, 1964 THE WEEKLY LAW EEPOETS [1964] 2 W.L.E. 751

tried together without any prejudice to either party and to t h e C. A.

common good of all, because it will result in t h e saving of costs. 1964
The appeal will be dismissed.
LEWIS
E.
Appeal dismissed. DAILY
TELEGRAPH
Plaintiff Lewis to pay defendants' LTD.
costs. No order as to liquidator's (No. 2).
costs.

Solicitors: Tringhams; Bower, Cotton & Bower; Simmons &

Simmons; Swepstone, Walsh & Co.
N. P .

[COURT OF APPEAL.]

NATIONAL P E O V I N C I A L BANK L T D . v. H A S T I N G S CAE C. A.

M A E T L T D . AND OTHERS.
1963
[1962 N. No. 1281.] Nov. 25, 26,
27, 28;
1964
Jan
NATIONAL P E O V I N C I A L BANK L T D . v. H A S T I N G S CAE - 29 -
M A E T L T D . AND OTHERS ( N O . 2). Lord Denning
M.R.,
Donovan and
[1962 N. No. 1281.] Russell L.JJ.

Husband and Wife—Matrimonial home—Desertion by husband—Mort­

gage subsequently—Wife in occupation—Begistered land—Whether
wife's right an overriding interest — Land Begistration Act, 1925
(15 Geo. 5, c. 21), s. 70 (1) (g).
Begistered Land—Mortgage—Tenant's rights—Deserted wife—Whether
right to occupy matrimonial home an "overriding interest" —
Land Begistration Act, 1925, s. 70 (1) (g).
Husband and Wife—Maintenance (Disposition to avoid)—Matrimonial
home—Legal charge—Conveyance of house by husband to a company
—Mortgage created by company—Disposition by husband conveying
house to company set aside—Whether mortgagee's interest affected—
Bight of mortgagee to possession—Matrimonial Causes (Property
and Maintenance) Act, 1958 (6 & 7 Eliz. 2, c. 35), s. 2.
A husband deserted his wife in August, 1957, leaving her and
four children in occupation of the matrimonial home. The wife
obtained a decree of judicial separation in March, 1961, and was
also granted custody of the children, permanent alimony and main-
tenance for the children on the basis that she was provided with
rent-free accommodation.
The husband had purchased the matrimonial home in June,
1956. He also owned two other properties, at one of which he
carried on the business of a car dealer 'and his mother lived in the
other. He went to live with her there after leaving his wife. By
November, 1959, he owed nearly £6,000 to a bank secured by a
charge on the matrimonial home. He incorporated his business
into a company and conveyed the matrimonial home and his place

[Reported by Miss B. A. BICKNELL, Barrister-at-Law.]