Moy v Pettmann Smith (a firm)

Judgments - Moy v Pettmann Smith (a firm) (Original Respondents and Cross-appellants) and another (Original Appellant and Cross-respondent)

HOUSE OF LORDS

SESSION 2004-05
[2005] UKHL 7
on appeal from: [2002] EWCA Civ 875

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Moy

Pettmann Smith (a firm) (Original Respondents and Cross-appellants) and another (Original Appellant and Cross-respondent)

THURSDAY 3 FEBRUARY 2005

The Appellate Committee comprised:

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Moy v. Pettmann Smith (a firm) (Original Respondents and Cross-appellants) and another (Original Appellant and Cross-respondent)

[2005] UKHL 7

LORD NICHOLLS OF BIRKENHEAD

My Lords,

I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell. For the reasons they give, with which I agree, I would allow this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Carswell. I agree with it and for the reasons that he has given I too would allow the appeal. I should like to add these comments.

Competency of the appeal

Section 1(5) of the Civil Liability (Contribution) Act 1978 refers to a judgment in any part of the United Kingdom. The phrase "in any part of the United Kingdom" did not appear in clause 3(7) of the draft Civil Liability Contribution Bill which was annexed to the Law Commission's report, Law of Contract, Report on Contribution (9 March 1977, No. 79). The Law Commission concentrated on the position in England and Wales. It recommended that, for the purposes of contribution proceedings in this jurisdiction, neither party should be allowed to challenge a finding of non-liability made in favour of the other in an action brought against the other by the plaintiff, provided that the finding was made after a trial on the merits: para 81(g). It did not discuss the possibility that the finding which was not to be challenged was one that had been obtained from a court in another part of the United Kingdom. But reference is made in para 65, footnote 89, to another matter drawn to its attention by a working party of the Scottish Law Commission which was not unrelated to this issue. This indicates that, in accordance with normal practice and as was to be expected, the two Law Commissions were in touch with each other during the preparation of this report.

We do not know what led to the change of wording which led to the formula that now appears in section 1(5) of the 1978 Act. But the intention appears to have been to remove the possibility of any doubt on this point by providing expressly that no distinction was to be drawn for its purposes between judgments obtained under…

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