Battling with waves and lawyers

by Unknown

The Full Court, consisting of Mr. Justice Williams, Mr. Justice Holroyd, and Mr. Justice A’Beckett, yesterday commenced the hearing of an appeal by the plaintiff in the suit of Ponting v. Huddart, Parker & Co., Limited, against a decision by Judge Chomley refusing to grant a new trial of the action. The first ground of the appeal was that the jury, or some of them, did not act fairly and impartially; but were biassed or influenced by reason of the fact that they, or the majority of them, had had conversations with defendants’ senior counsel, Mr. W. T. Coldham, and the defendants’ solicitor, Mr. Gordon R. Stewart, with reference to the action and the matters in dispute therein. That three of the said jury were for a period of at least fifteen minutes drinking and smoking with defendants’ senior counsel and solicitor at the bar of Menzies’ Hotel, and conversing with them with reference to this action, such interview having been made by arrangement and appointment. That a written communication passed between one of the jury (McGregor) and Mr. Coldham, and the contents thereof were discussed at the Law Courts, and afterwards at Menzies’ Hotel, such communication having reference to a point in connection with the action, as to which McGregor had from the jury-box expressed himself as being unfavourable to defendant. That the learned Judge exercised a wrong discretion in refusing to grant a new trial on facts as detailed and set forth in the several affidavits filed in support of and in opposition to the summons. The other ground on which the appeal was based was that certain documents were improperly admitted as evidence at the trial.

Mr. Leon, instructed by Messrs. Ebsworth & Wilson, appeared for the appellant plaintiff; and Mr. Box, Mr. Coldham, and Mr. Schutt, instructed by Messrs. Malleson, England & Stewart, for the respondent defendant. It will be remembered that in July last Ponting, the sole survivor of the wreck of the Alert, brought an action against the owners of the vessel, Messrs. Huddart, Parker & Co., Limited, to recover damages for injuries sustained by him as the result of the disaster. The case was tried before Judge Chomley and a jury of four, and resulted in a verdict for defendants. On August 20 last plaintiff applied for a new trial on grounds similar to those of the present appeal, but his summons was dismissed with costs.

Mr. Leon, in support of the first ground of appeal, read the affidavits that were used at the application for a new trial made to Judge Chomley, full particulars of which have already been published. The effect of the affidavits made on behalf of the plaintiff was that on July 31, while Mr. Ebsworth, in the course of his address to the jury, paused for a moment to look at some documents before him, Mr. Coldham came into court, leant on the railing of the steps leading to the jury-box, and smiled and winked at the jury. Mr. Mitchell, one of the jurors, gave him a significant glance, and smiled in return. Immediately after the Court adjournment, at 4 o’clock, and while the case was still part heard, Mr. Coldham was heard to say to Mr. G. R. Stewart, “I have promised to meet them at Menzies’ Hotel,” and about the same time was seen to run, with his wig and gown on, towards Goldsbrough’s Lane. He called out to a juryman, Mr. McGregor, “Don’t go away, McGregor, I want to see you. I will meet you at Menzies’.” About 4.20 p. m. the foreman, Mr. Hopkins, and Messrs. Mitchell and McGregor, two other jurors, were seen standing before the bar at Menzies’ Hotel with Messrs. Coldham and Stewart, talking earnestly and drinking and smoking. It was also said that as the jurymen left the box on the afternoon in question, one of them (McGregor) handed Mr. Coldham a written communication. In answer to these allegations affidavits were filed denying that Mr. Coldham told Mr. Stewart that he had “promised to meet them,” or that he had said anything to that effect. While standing at the barristers’ table immediately after the adjournment, Mr. Coldham was handed a piece of blotting-paper, on which was a sketch and figures relating to the Alert’s funnel, concerning which the juryman McGregor had spoken in the box while the case was proceeding. He ran after McGregor to give it to him back, and on meeting him accidentally at Menzies’ handed it to him, saying, “Here is your beautiful production.” He, with Mr. Stewart, then accepted McGregor’s invitation to have a drink. Nothing whatever was said about the case, and the allegation that counsel winked at the jury was false, and a grotesque invention.

Mr. Box said the whole point of this matter was whether there was any pre-arranged meeting at Menzies’. His client said there was no pre-arrangement, and that the meeting was purely accidental. Who cared twopence about a glass of wine?

Mr. Justice Williams: I would say it was very imprudent, to say the least of it, of counsel and solicitor, to go drinking with three of the jury during the hearing of the case.

Mr. Box: Whether they had a drink or not, it was not by pre-arrangement. Mr. Coldham swears that he made no such statement as that alleged relative to a promise to meet any of the jurymen.

Mr. Leon said he did not care whether there was a conflict of evidence on that point or not. He did not rely on that. In his opinion Mr. Coldham supported Mr. Reid’s statement, because he said in his affidavit that he called out to McGregor that he wanted to see him. The main feature of this affair was the agreement of all the deponents, and the admission by Mr. Coldham and Mr. Stewart that they were drinking with three jurymen in the bar of an hotel before the case had been concluded. He had not got to prove that there was actual impropriety, but there could be no doubt about the principle that even the appearance of wrong-doing must not be shown in the administration of justice. In the first place, it was a gross impropriety on the part of these three jurymen to drink and smoke and converse in a public bar with counsel and solicitor for one of the parties in a case being heard by them. It was very improper for counsel and solicitor to be seen with members of the jury in a public bar in the presence of people who knew that litigation was going on, and that the judges of the facts in that litigation and the advocates for one of the parties to that litigation were “hobnobbing” together. He had no hesitation in saying it was most indiscreet and improper, and if there was the appearance of impropriety in connection with the case the trial must be void. The public must feel satisfied and rest content in their minds that not even the shadow of suspicion could be cast on the administration of justice. That principle had been laid down by the Court, and such being so, this occurrence was such an impropriety as would vitiate the proceedings. It was admitted that the juryman McGregor was a friend of Mr. Coldham’s, and had passed him a paper relating to the case.

Mr. Box: In open court.

Mr. Leon did not care whether it was in open court or not. It was a most improper thing to do. Communications had no right to be passed between the judge of the facts of the case and the advocates of one of the parties in the case. Nothing of that kind could be tolerated, because people would say, and be justified in saying, there was a very fine understanding between defendants’ counsel in the case and that juryman; that they seemed to be on excellent terms with each other. To allow such a thing to pass would be intolerable, and bring the administration of justice into contempt, The principle for which he contended had been laid down by Mr. Justice Hood in a considered judgment.

Mr. Schutt said that before the Court proceeded to deliver judgment on the first ground of appeal, he would like it to consider a point of law raised as a defence at the trial of the action in the lower Court, but not then argued, as the jury found in defendants’ favour. He believed the point was absolutely fatal to plaintiff’s case, and even if the Court were of opinion that a new trial should be granted, it would be useless in the face of this point to order a new trial to go on.