600

Reg. v. Boal (C.A.) [1992]

it believes the defence would quite probably have succeeded and \

concludes, therefore, that a clear injustice has been d o n e . That is this
case. It will not happen often.

Appeal allowed.
Conviction quashed.

Solicitors: Hart Fortgang; Head of Legal Services, London Fire and "
Civil Defence Authority.

L. N . W.

[COURT OF APPEAL]
D
S T E W A R T G I L L L T D . v. H O R A T I O M Y E R & C O . L T D .

J992 Feb. 5; 12 Lord Donaldson of Lymington M.R.,

Balcombe and Stuart-Smith L.JJ.

Fair Trading—Contract—Unfair terms—Supply of goods and services—

Suppliers' written standard contract—Term disentitling customer E
from withholding payment by reason of set-off—Whether term
ineffective—Unfair Contract Terms Act 1977 (c. 50), ss. 3, 11,
13(1 )(b)
The plaintiffs agreed to supply, install and test an overhead
conveyor system at the defendants' premises on terms whereby
15 per cent, of the price was to be paid on order and 75 per cent.
by progress payments during the work. The remaining 10 per cent. **
was payable as to five per cent, on completion and as to five per
cent. 30 days thereafter. By clause 12.4 of the plaintiffs' general
conditions of sale, to which the contract was subject, the defendants
were not entitled to withhold payment of any sum due to the
plaintiffs under the contract by reason of "any payment, credit,
set-off . . . or for any other reason whatsoever." In proceedings
to recover the final 10 per cent, of the price the plaintiffs sought Q
summary judgment under R.S.C., Ord. 14. The defendants resisted
the application on the grounds that they were entitled to claim
against the plaintiffs a greater sum by way of set-off than that
claimed against them and that any restriction on their right of set
off imposed by clause 12.4 was rendered ineffective by the Unfair
Contract Terms Act 1977.' The judge concluded that the clause,
although not falling within section 3 of the Act, would be ineffective
under section 13(l)(b) if the plaintiffs failed to satisfy the court H

1
Unfair Contract Terms Act 1977, s. 3: sec post, p. 607n.
S. 11(1): see post, p. 607A-B.
S. 13: sec post, p. 605C-E.
 601
1 Q.B. Gill Ltd. v. Myer & Co. Ltd. (C.A.)
A that the term was reasonable within the meaning of section 11.
Declining to deal with the issue of reasonableness and without
directing the hearing of that issue as a preliminary point, he
dismissed the plaintiffs' summons and granted the defendants
unconditional leave to defend.
On the plaintiffs' appeal:—
Held, dismissing the appeal, that on its true construction
section 13(l)(b) of the Act of 1977 extended the scope of
B section 3 and applied to any contract term excluding or
restricting any right or remedy in respect of any liability the
exclusion or restriction of which was prevented by section 3;
that since clause 12.4 did so restrict the defendants relying on
their right to set off their claim against that of the plaintiffs, and
prevented them enforcing their remedy in that manner, it was a
term which fell within the scope of section 13(l)(i>); that the
^ burden lay on the plaintiffs to show that the requirement of
reasonableness under section 11 was satisfied in relation to the
clause as a whole and not only to that part on which reliance
was placed to defeat the defendants' claim; and that, accordingly,
having regard to its entirety, the clause failed to satisfy the
requirement of reasonableness (post, pp. 605H-606C, E-G, 607B-D,
H-608A, C-D).
Per Lord Donaldson of Lymington M.R. Such a clause, to
D be effective at all, can only take effect either on an application
for summary judgment or on the subsequent hearing of a
preliminary point as to its reasonableness. To give unconditional
leave to defend without ordering the hearing of a preliminary
point is in effect to render the clause nugatory. The judge
should have reached a decision on its reasonableness in the light
of such evidence as he had (post, p. 604F-H).
E
No cases are referred to in the judgments.
The following cases were cited in argument:
Mitchell (George) (Chesterhall) Ltd. v. Finney Lock Seeds Ltd. [1983] Q.B.
284; [1982] 3 W.L.R. 1036; [1983] 1 All E.R. 108, C.A.
Photo Production Ltd. v. Securicor Transport Ltd. [1980] A.C. 827; [1980]
p 2 W.L.R. 283; [1980] 1 All E.R. 556, H.L.(E.)
Smith v. Eric S. Bush [1990] 1 A.C. 831; [1989] 2 W.L.R. 790; [1989] 2 All
E.R. 514, H.L.(E.)
Woolfv. Collis Removal Service [1948] 1 K.B. 11; [1947] 2 All E.R. 260, C.A.

APPEAL from Judge Loyd Q . C . sitting on official referee's business.

By a writ issued on 28 August 1990 the plaintiffs, Stewart Gill Ltd.,
G claimed against the defendants, Horatio Myer & Co. Ltd., the sum,
inter alia, of £36,272-42 plus V A T , being the amount outstanding under
a contract for the supply, installation and testing of a twintrack power
and free overhead conveyor system. By a summons dated 14 September
1990 the plaintiffs sought summary judgment under R . S . C . , O r d . 14 in
respect of the a m o u n t claimed. By their defence and counterclaim dated
14 February 1991 the defendants claimed entitlement to set off a sum
extinguishing the plaintiffs' claim and damages in respect of the plaintiffs'
failure properly to perform the contract. By his order dated 11 May
1991 the judge dismissed the plaintiffs' application under O r d e r 14 and
granted the defendants unconditional leave to defend.
602
Gill Ltd. v. Myer & Co. Ltd. (C.A.) [1992]

By a notice of appeal dated 24 May 1991 the plaintiffs appealed with A

leave of the judge on the grounds, inter alia, that the judge had erred in
law (1) in concluding that clause 12.4 of the plaintiffs' general conditions
of sale was an exemption clause within the meaning of the Unfair
Contract Terms Act 1977 and therefore was required to satisfy the test
of reasonableness; (2) in holding that clause 12.4 came within and/or
was caught by section 13(l)(fr) of the Act; (3) in failing to conclude that
the clause was merely contractual machinery and not an exemption "
clause; (4) in failing to conclude that the clause did not restrict the
plaintiffs' liability in respect of breach of contract and accordingly did
not come within either section 3 or section 13 of the Act; (5) in failing
to apply the approach adopted in Woolf v. Collis Removal Service [1948]
1 K.B. 11; (6) in failing to conclude that the plaintiffs had adduced
prima facie evidence of reasonableness both in respect of notice of the Q
relevant terms and of the equality of bargaining position; and (7) in
failing to conclude that in the absence of any evidence at all from the
defendants as to unreasonableness they ought to have been given
conditional leave to defend and/or been required to pay the moneys into
court.
The facts are stated in the judgment of Lord Donaldson of
Lymington M.R. D

David Joseph for the plaintiffs. Clause 12.4 of the contract does not
fall within either section 3 or section 7 of the Unfair Contract Terms
Act 1977 since both sections relate to contractual attempts to restrict or
exclude liability in respect of a breach of the obligations of the party in
the position of the plaintiffs. Clause 12.4 does not attempt to do that E
but merely provides contractual machinery for enforcing the performance
of the defendants' only obligation, which is to pay the contract price. By
its wording the clause expressly deals with potential excuses for
performing that obligation.
Since clause 12.4 falls outside sections 3 and 7, it must also fall
outside section 13(1) since on a true construction of that section the
courts' only concern lies with provisions restricting or excluding the
contract breaker's liability. Section 13(1) does not extend section 3 but
returns to its wording: see, in particular, the use of the words "the
liability" in paragraphs (a) and (b). The wording of section I3(l)(a)(b)
and (c) is broad but subject to the opening words of the section so that
the focus remains on the restriction or exclusion of the payee's liability
as opposed to the contractual enforcement of the payer's obligation. G
That liability is in respect of the counterclaim, which is not limited or
excluded by virtue of clause 12.4. The plaintiffs' liability will arise if the
defendants succeed on their counterclaim and section 13 accordingly
does not apply.
Alternatively if section 13 is prima facie applicable, section 13(1)(£>)
will not apply because clause 12.4 does not restrict or exclude any of the
defendants' rights or remedies but simply provides for the manner of
their enforcement. The defendants do not show prejudice in bringing
their claim by counterclaim. [Reference was made to Woolf v. Collis
Removal Service [1948] 1 K.B. 11.]
 603
1 Q.B. Gill Ltd. v. Myer & Co. Ltd. (C.A.)

A The focus of the Act of 1977 is to control attempts by contract

breakers to restrict or limit their liability arising from their primary or
secondary obligations: see Photo Production Ltd. v. Securicor Transport
Ltd. [1980] A.C. 827, 848-851. The defendants seek to use the Act not
for that purpose but to modify an obligation to pay the contract price
despite a contractual term to the contrary.
In considering whether or not the clause is reasonable, and having
" regard to section 11 of the Act, it is only that part of the clause relied
on by the plaintiffs which is to be considered, not clause 12.4 as a
whole. The part relied on is within the ambit of reasonableness and the
defendants are unable to show otherwise. The clause is in a standard
form contract and is clear and understandable. The reasonableness test
is satisfied. [Reference was made to Smith v. Eric S. Bush [1990] 1 A.C.
Q 831 and George Mitchell (Chesterhall) Ltd. v. Finney Lock Seeds Ltd.
[1983] Q.B. 284.]
Michael Yelton for the defendants. Section 13 of the Unfair Contract
Terms Act 1977 has a wider ambit than section 3. The judge correctly
held that clause 12.4 was an exemption clause within that ambit since it
clearly purports to exclude the defendants' right to set off and restricts
their remedy to adopt the procedural rules in R.S.C., Ord. 18, r. 17
D and, in particular, to rely on their entitlement to unconditional leave to
defend on an application for summary judgment.
In ascertaining the reasonableness of a clause, having regard to
section 11 of, and Schedule 2 to, the Act of 1977, it is the clause in its
entirety which is considered and not only that part on which the
plaintiffs seek to rely. Any other approach would be unworkable and
£ impracticable. Clause 12.4 as a whole clearly fails that test.
Joseph in reply. Section 11(1) has to be read in the context of
sections 3 and 7. The court should have regard only to the words
complained of by the defendants, as restricting or excluding liability in
respect of the claim before the court. Clause 12.4 must therefore be
severed to isolate the relevant term. Any other approach would be
unworkable.
F

Cur. adv. vult.

12 February. The following judgments were handed down.

LORD DONALDSON OF LYMINGTON M.R. This appeal raises a not
G uninteresting point under the Unfair Contract Terms Act 1977. It arises
on an appeal against a decision of Judge Loyd Q.C., sitting on official
referee's business, giving the defendants unconditional leave to defend.
In or about October 1988 the defendants, who are manufacturers of
beds, entered into a contract with the plaintiffs for the delivery,
installation and testing of a twintrack power and free overhead conveyor
system at a price of £266,400 plus VAT. There was also provision for
additional work and special equipment to be the subject of extra
charges. The terms of payment were 15 per cent, with the order, 75 per
cent, by progress payments during the work, five per cent, on completion
of installation and five per cent. 30 days following completion. All these
604
G i L t d v M er & C o L t d
X X i o n M.R. " - - y - - <c-A-> i' 992 !
stages have been reached and I understand the plaintiffs' claim to be for A
the 10 per cent, of the price due on completion or 30 days thereafter.
The defence to the claim is based upon alleged breaches of the contract
by the plaintiffs giving rise to cross-claims which overtop and pro tanto
can be set off against the amount claimed.
The plaintiffs, whilst denying the defendants' cross-claims, accept
that, but for a special term of the contract, on these facts the defendants
would be entitled to unconditional leave to defend. That term, which is °
one of the plaintiffs' general conditions of sale to which the contract was
admittedly subject, is in the following terms:
"12.4 The customer shall not be entitled to withhold payment of
any amount due to the company under the contract by reason of
any payment credit set off counterclaim allegation of incorrect or
defective goods or for any other reason whatsoever which the C
customer may allege excuses him from performing his obligations
hereunder."

The defendants accept that if this clause can survive the impact of
the Act of 1977, the plaintiffs are entitled to summary judgment,
although this would leave it open to the defendants to pursue their
claims as a counterclaim and would also, incidentally, leave it open to
the court in giving judgment for the plaintiffs additionally in an
appropriate case to stay execution upon that judgment or to do so
conditionally upon the money being brought into court.
The defendants relied upon sections 3, 7 and 13 of the Act. Judge
Loyd held that neither sections 3 nor 7 were applicable, but that section
13 applied and in consequence the clause could only be relied upon if it g
was reasonable. His conclusion on that issue was expressed in the
following terms:
"I am afraid that I cannot conclude that the material before me in
relation to reasonableness is in any way complete. It would be quite
wrong on the state of the evidence to say that I am satisfied that the
test of reasonableness has been met enabling me to say that clause p
12.4 should remain in force. With some reluctance I have to decline
the plaintiffs' application and give unconditional leave to the
defendants to defend. Defendants' costs in any event."

With all respect to the judge, I think that he overlooked the fact that
such a clause, if it is to be effective at all, can only take effect either
upon an application for summary judgment under R.S.C., Ord. 14 or on G
the subsequent hearing of a preliminary point as to its reasonableness.
To give unconditional leave to defend without ordering the hearing of a
preliminary point is in effect to render the clause nugatory, since by the
end of a final hearing it would not matter whether there was a set-off or
separate judgments on claim and counterclaim. He should therefore
have reached a decision on its reasonableness in the light of such
evidence as he had.
The Act of 1977 approaches contracts governed by the law of sale of
goods or hire-purchase in some respects differently from other contracts:
see, for example, section 7. Accordingly it needs to be said, and this
 605
1 Q.B. Gill Ltd. v. Myer & Co. Ltd. (C.A.) ,, L ° r d Donaldson
^ ' o f Lymington M.R.
A was not in controversy, that this contract was not governed by the law
of sale of goods or hire-purchase, but by the Supply of Goods and
Services Act 1982.
Section 3 of the Act of 1977 applies where, as here, one party to a
contract deals with the other on that other's written standard terms of
business. However, it is limited to terms excluding or restricting liability
R or entitling the party concerned to render no contractual performance or
a performance which is substantially different from that which was
reasonably expected of him. Clause 12.4 is not such a clause, but the
section is relevant to a consideration of section 13, although it is not
there referred to in express terms.
Section 7 applies where, as here, the contract transfers the ownership
of goods otherwise than under a contract for the sale or hire-purchase of
^ goods. Unlike section 3 it is referred to in section 13 but, like section 3,
it is concerned with exclusion or restriction of liability.
This leaves section 13 which is in the following terms:
"Varieties of exemption clause. (1) To the extent that this Part of
this Act prevents the exclusion or restriction of any liability it also
prevents—(a) making the liability or its enforcement subject to
restrictive or onerous conditions; (b) excluding or restricting any
right or remedy in respect of the liability, or subjecting a person to
any prejudice in consequence of his pursuing any such right or
remedy; (c) excluding or restricting rules of evidence or procedure;
and (to that extent) sections 2 and 5 to 7 also prevent excluding or
restricting liability by reference to terms and notices which exclude
E or restrict the relevant obligation or duty. (2) But an agreement in
writing to submit present or future differences to arbitration is not
to be treated under this Part of this Act as excluding or restricting
any liability."

It is a trite fact (as contrasted with being trite law) that there are
p more ways than one of killing a cat. Section 13 addresses this problem.
On behalf of the plaintiffs it was submitted that it only did so to the
extent of rendering ineffective any unreasonable term which by for
example introducing restrictive or onerous conditions, indirectly achieved
the exclusion or restriction of liability which, if achieved directly, would
fall within the scope of other sections. The plaintiffs rightly say that
„ clause 12.4 does not have this effect. On behalf of the defendants it was
submitted that it had a wider scope.
The answer is, of course, to be found in the wording of the section,
but it does not exactly leap out of the print and hit one between the
eyes. Analysing the section and disregarding words which are irrelevant,
it seems to deal with the matter as follows: "To the extent that this Part
of this Act prevents the exclusion or restriction of any liability it also
" prevents . . ." This seems to me to do no more than give expression to
the "cat" approach. Both sections 3 and 7 would render ineffective any
clause in the plaintiffs' written standard terms of business which excluded
or restricted liability in respects which are here material and section 13
I Q.B. 1992-27
606
^[dym,?nngton°M.R. G\\\ Ltd. v. Myer & Co. U d . (C.A.) [1992)
extends this in some way. In order to find out in what way, one must A
read on:
"it also prevents—(a) making the liability or its enforcement subject
to restrictive or onerous conditions; (b) excluding or restricting any
right or remedy in respect of the liability . . . (c) excluding or
restricting rules of . . . procedure; . . . "
B
Now clause 12.4 can perhaps be said to make the enforcement of the
plaintiffs' liability subject to a condition that the defendants shall not
have sought to set off their own claims against their liability to pay the
price and this might well be said to be onerous. However, I do not think
it necessary to pursue this, because it is quite clear that clause 12.4
excludes the defendants' "right" to set off their claims against the
plaintiffs' claim for the price and further excludes the remedy which
they would otherwise have of being able to enforce their claims against
the plaintiffs by means of a set-off: see paragraph (b). It also excludes
or restricts the procedural rules as to set-off: see paragraph (c). Thus
far, therefore, the defendants can bring themselves within the section.
We then get to the words
"and (to that extent) sections 2 and 5 to 7 also prevent excluding or
restricting liability by reference to terms and notices which exclude
or restrict the relevant obligation or duty."

Although I find this obscure, I do not think that these words restrict the
ambit of the preceding words. I think that they constitute an extension
and that what is intended to be covered is an exclusion or restriction of E
liability not by contract but by reference to notices or terms of business
which are not incorporated in a contract. If this is correct, it is irrelevant
to the present case.
On this construction of section 13 the defendants succeed because,
whatever the reasonableness of a clause which excludes or restricts a
right of set-off, nothing could prima facie be more unreasonable than p
that the defendants should not be entitled to withhold payment to the
plaintiffs of any amount due to the plaintiffs under the contract by
reason of a "credit" owing by the plaintiffs to the defendants and, a
fortiori, a "payment" made by the defendants to the plaintiffs. In this
context "payment" must I think mean overpayment under another
contract and credit mean "credit note" or admitted liability again under „
another contract, because otherwise it would be doubtful whether it
could be said by the plaintiffs that any amount was due to them under
the contract. Mr. Joseph, appearing for the plaintiffs, did not seriously
gainsay this, but he submitted that as the defendants were not seeking
to rely upon a payment or credit, this part of the clause could be
ignored. In support of my view that clause 12.4 as a whole completely
fails the test of reasonableness, I gratefully adopt the additional H
considerations based upon its concluding words and Schedule 2 to the
Act discussed in the judgment of Stuart-Smith L.J. which I have read in
draft.
 607
1 Q.B. Gill Ltd. v. Myer & Co. Ltd. (C.A.) Lord Dona ' d , s » n
J
of Lyminj»ton M.R.
A Whether or not it is possible to sever parts of the clause depends
upon section 11(1) which is in these terms:
"The reasonableness test. (1) In relation to a contract term, the
requirement of reasonableness for the purposes of this Part of this
Act . . . is that the term shall have been a fair and reasonable one
to be included having regard to the circumstances which were, or
g ought reasonably to have been known to or in the contemplation of
the parties when the contract was made."
In the face of this wording its seems to me to be impossible to contend
that we should look only at the part of the clause which is relied upon.
The issue is whether "the term [the whole term and nothing but the
term] shall have been a fair and reasonable one to be included." This
Q has to be determined as at the time when the contract is made and
without regard to what particular use one party may subsequently wish
to make of it. I would unhesitatingly answer this in the negative and
accordingly would dismiss the appeal.

BALCOMBE L.J. I have had the advantage of reading in draft the

judgments of Lord Donaldson of Lymington M.R. and Stuart-Smith L.J.
I agree with them, and for the reasons which they give, that this appeal
should be dismissed.

STUART-SMITH L.J. Section 3 of the Unfair Contract Terms Act 1977

provides:
"(1) This section applies as between contracting parties where one
of them deals as consumer or on the other's written standard terms
of business. (2) As against that party, the other cannot by reference
to any contract term—(a) when himself in breach of contract,
exclude or restrict any liability of his in respect of the breach; . . .
except in so far as (in any of the cases mentioned above in
this subsection) the contract term satisfies the requirement of
p reasonableness."
Section 13(1), so far as it is relevant, provides:
"To the extent that this Part of this Act prevents the exclusion or
restriction of any liability it also prevents— . . . (b) excluding
or restricting any right or remedy in respect of the liability, or
subjecting a person to any prejudice in consequence of his pursuing
G any such right or remedy; . . . "
Two questions therefore arise in this appeal. (1) Is clause 12.4 of the
plaintiffs' standard conditions of contract caught by section 13(l)(/>) of
the Act? (2) If so, have the plaintiffs satisfied the requirement of
reasonableness?
The use of the word "also" in the introductory words shows that the
section is intended to extend the scope of section 3 of the Act. Applying
the words of section 13(l)(b) to the clause in question, the liability
referred to is that of the plaintiffs, the alleged contract breaker, and the
right or remedy is that of the defendant. In my judgment, but for
608
Stuart-Smith L.J. Gill Ltd. v. Myer & Co. Ltd. (C.A.) [1992]

the provisions of clause 12.4, the defendants would have a right to set A
off the claim for damages in respect of the plaintiffs' liability for breach
of contract against the claim for the price. This is a right given by the
law in the form of an equitable set-off. Does clause 12.4 exclude or
restrict that right? In my judgment plainly it does, since it prevents the
defendants from relying on the right of set-off.
The burden of satisfying the court that the term is reasonable rests
on the plaintiffs in this case. What is it that they have to show is "
reasonable? Is it clause 12.4 as a whole or is it only that part of it which
the plaintiffs need to rely upon in this case to defeat the defendants' set-
off, namely "The customer shall not be entitled to withhold any amount
due to the company under the contract by reason of . . . set off
counterclaim allegation of incorrect or defective goods . . . "
If it is the former, then in my judgment the clause is plainly Q
unreasonable. There can be no possible justification for preventing a
payment or credit to be set off against the price claimed, and the width
of the concluding words "or for any other reason whatsoever which the
customer may allege excuses him from performing his obligations" is
unlimited, and would extend for example to a defence based on fraud.
In my judgment it is the term as a whole that has to be reasonable
and not merely some part of it. Throughout the Act the expression used D
is "by reference to any contract term," the contract "term satisfies the
requirement of reasonableness:" see sections 3 and 7. And in section
11(1) the reasonableness test is laid down as
"In relation to a contract term, the requirement of reasonableness
. . . is that the term shall have been a fair and reasonable one to be
included having regard to the circumstances which were, or ought E
reasonably to have been, known to or in the contemplation of the
parties when the contract was made."
Although the question of reasonableness is primarily one for the court
when the contract term is challenged, it seems to me that the parties
must also be in a position to judge this at the time the contract is made.
If this is so, I find it difficult to see how such an appreciation can be p
made if the customer has to guess whether some, and if so which, part
of the term will alone be relied upon.
Section 11(2) of the Act requires the court which is determining the
question of reasonableness for the purpose of sections 6 and 7 to have
regard in particular to the matters specified in Schedule 2. Although
Schedule 2 does not apply in the present case, the considerations there
set out are usually regarded as being of general application to the G
question of reasonableness. Two paragraphs of these guidelines would in
my judgment be unworkable unless the whole term is being considered.
Paragraph (b) provides:
"whether the customer received an inducement to agree to the
term, or in accepting it had an opportunity of entering into a similar
contract with other persons, but without having to accept a similar H
term; . . ."
If there was an inducement, it would I think be quite impossible in most
cases to say that it related only to the words which the party seeking to
 609
I Q.B. Gill Ltd. v. Myer & Co. Ltd. (C.A.) Stuart-Smith L.J.

A establish reasonableness relies upon as opposed to those he wishes to

delete. It is equally unreal to suppose that the customer could divine
which part the vendor will ultimately seek to rely upon so as to decide
whether other persons are willing to contract without the term.
Paragraph (c) provides:
"whether the customer knew or ought reasonably to have known of
R the existence and extent of the term (having regard, among other
things, to any custom of the trade and any previous course of
dealing between the parties); . . ."
In my judgment the customer would be most unlikely ever to know
the extent of the term if the vendor is entitled, when it is questioned as
to reasonableness, to rely on only part of it.
^ These examples in my judgment support the construction of the
word term as being the whole term or clause as drafted, and not merely
that part of it which may eventually be taken to be relevant to the case
in point.
Nor does it appear to me to be consistent with the policy and
purpose of the Act to permit a contract or to impose a contractual term,
which taken as a whole is completely unreasonable to put a blue pencil
D through the most offensive parts and say that what is left is reasonable
and sufficient to exclude or restrict his liability in a manner relied upon.
In these circumstances it is unnecessary to decide whether on the
material before the court the plaintiffs had discharged the burden of
showing that the particular part of clause 12.4 relied upon by them was
reasonable.
I would dismiss the appeal.

Appeal dismissed with costs.

Leave to appeal refused.

Solicitors: Palmer Cowen; Copleys, St. Ives, Cambs.

F D. E. C. P.

1 Q.B. 1992-28