Parliamentary Archives
HOUSE OF LORDS
Date: l4 December 1994
REGINA
v.
REGISTERED DESIGNS APPEAL TRIBUNAL AND OTHERS,
(RESPONDENTS)
EX PARTE FORD MOTOR COMPANY LIMITED (APPELLANTS)
(ON APPEAL FROM THE QUEEN'S BENCH DIVISION OF THE HIGH COURT OF JUSTICE)
Lord Keith of Kinkel
Lord Ackner
Lord Goff of Chieveley
Lord Mustill
Lord Slynn of Hadley
JUDGMENT
LORD KEITH OF KINKEL
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend Lord Mustill, which I have read in draft and with which I agree, I would dismiss this appeal.
LORD ACKNER
My Lords,
For the reasons given by my noble and learned friend Lord Mustill, I too would dismiss this appeal.
LORD GOFF OF CHIEVELEY
My Lord
I too would dismiss this appeal for the reasons to be given in the speech of my noble and learned friend Lord Mustill.
LORD MUSTILL
My Lords,
The designer of a new article is entitled under the Registered Designs Act 1949, as amended by section 272 of the Copyright, Designs and Patents Act 1988, to register the design in the register maintained under section 17 of the amended Act, and thereby obtain the exclusive rights conferred by sections 7 and 8. Ford Motor Company Limited (hereafter "Ford"), the present appellants, made some fifty applications for the registration of various motor vehicle components, such as door panels, steering wheels, seats, bonnet tops and wheel covers. All of these were rejected, and the rejection was maintained in a fully-reasoned decision of Mr. B.G. Harden, acting as superintending examiner for the Registrar of Designs, concerning fourteen designs which had been chosen as specimens. Ford appealed to the Registered Designs Appeal Tribunal, where the matter was heard by Mr. Julian Jeffs Q.C., sitting as a Deputy High Court Judge in the Chancery Division. In large measure the decision of the superintending examiner was upheld, but not for identical reasons, and not in respect of all the items. Ford sought judicial review, but the Divisional Court of the Queen's Bench Division upheld the decision of the Appeal Tribunal, except as regards one item which was remitted to the Registry for further consideration. The matter now proceeds directly to your Lordships' House pursuant to a certificate under section 12(1) of the Administration of Justice Act 1960.
The relevant provisions of the amended Act, which may conveniently be quoted in the form contained in Schedule 4 to the Act of 1988, are as follows:
"1(1) In this Act 'design' means features of shape, configuration, pattern or ornament applied to an article by any industrial process, being features which in the finished article appeal to and are judged by the eye, but does not include-
(a) a method of principle of construction, or
(b) features of shape or configuration of an article which-
(i) are dictated solely by the function which the article has to perform, or
(ii) are dependent upon the appearance of another article of which the article is intended by the author of the design to form an integral part.
(2) A design which is new may, upon application by the person claiming to be the proprietor, be registered under this Act in respect of any article, or set of articles, specified in the application. ..."
"44(1) In this Act, except where the context otherwise requires, the following expressions have the meanings hereby respectively assigned by [sic] them, that is to say- ..."
'article' means any article of manufacture and includes any part of an article if that part is made and sold separately; ..."
On these provisions two questions of law were debated before the Tribunal and the Divisional Court. In addition, Mr. Silverleaf on behalf of the Registrar sought to raise before the House an important additional issue. More of that later. For the moment I will concentrate on the two questions canvassed below. As set out in the parties' Agreed Statement of Facts and Issues these are:
1. Are objects which are spare parts for other objects "articles" within the meaning of the Act?
2. What is the true construction of section l(l)(b)(ii) of the Act?
Before tracing the response to these questions in the decisions and judgments under appeal it is necessary to summarise the facts, as they appear from the limited materials put in evidence. On various dates in 1989 and 1990 Ford submitted to the Designs Registry a series of applications for registration. It appears that each was accompanied by a pictorial representation of a component. In the part of the application form headed "What article is the design to be applied to?", some of the applications included only a number, which I assume referred to a number on the relevant representation. Other applications contained a terse description, such as "Bonnet" or "Spoiler". Under rule 15 of the Registered Designs Rules 1989 (S.I. 1989 No. 1105) each representation of the design is required to bear a statement of the features of the design for which novelty is claimed. These Rules did not come into force until 1 August 1989, and the applications made before that date did not, at least as appears from the materials before the House, identify in any way the features of the design which were said to be novel. In some, though perhaps not all, of the later applications, the pictorial representations were endorsed:
"The novelty of the design resides in the features of shape and configuration of the article as shown in the representations."
By way of example one may take Application No. 2 004 658, made during the early part of 1990. The representation depicted the bonnet of a saloon car in a variety of views, in which it is possible to make out two longitudinal oval protuberances on either side of the centre line. The description of the article to which the design was to be applied was "Bonnet," and there was a statement of novelty endorsed on the pictures in the terms above quoted, The Registrar responded with a letter asserting that the "designs revealed in these applications" did not meet the requirements of section 1. He continued:
"In particular the features of the designs appear to be features of shape or configuration of articles which are dependent upon the appearance of a motor car of which the articles are intended by the author of the designs to form an integral part."
Two things are clear from this letter. First, the Registrar had understandably assumed that the design features claimed as novel and hence registrable related to the bonnet as a whole. Secondly, the refusal to register was on the ground that the design of the bonnet fell within the exclusion created by section l(l)(b)(ii) of the Act.
Exercising their rights under rule 29 of the 1989 Rules Ford submitted "Observations" in support of their claim. Ford explained that the original of the protuberances, which they called "power domes," lay in the fact that the overhead rocker box incorporated in the engines of some of the high-performance models had insufficient clearance under the bonnet, which had to be increased in height over part of its area on one side of the centre line. The Observations summarised the options available to the designer, and stated that for aesthetic reasons it was decided to incorporate two symmetrical power domes, elliptical in shape, one of which would have no function. They concluded, "Insofar as the present design was influenced by the position and size of the engine, none of the features of the design can be said to be dependent upon the appearance of the vehicle."
It is evident that in these Observations Ford were following the Registrar in treating the car as a whole as the "other article" for the purposes of section l(l)(b)(ii) but were identifying the relevant design features, for those purposes, as being the power domes alone.
After an interval of nearly two years the Registrar replied with detailed grounds for maintaining his objections. In the crucial part of his reasoning the Registrar evidently took Ford at their word in treating the bonnet as a whole as the subject of the claim for novelty. He said:
"In the context of the provisions of section l(l)(b)(ii), the particular vehicle is the 'other article,' and those features of shape and configuration of the relevant component which are dependent upon the appearance of that vehicle, i.e. which must match features contributing to the appearance of that vehicle, are excluded under those provisions. Having regard to the respective statements of novelty, which indicate in the case of each design that novelty resides in the shape and configuration of the component as shown in the representations, and since other features of shape and configurations evident from the representations which are not excluded as above are nevertheless excluded under section l(l)(b)(i), the designs are to be considered to be excluded from registration."
The Registrar concluded that:
"... designs of components which are intended to form part of, and to contribute to, the appearance of a vehicle, but which are subsequently made and sold to serve as spare parts, are excluded from registration if they comprise solely features of shape and configuration excluded by section l(l)(b)."
It is obvious that at this stage, although the Registrar was careful to refer to the bonnet only as a component, he must have been accepting that it was an "article," since his arguments based on the combination of paragraphs (a) and (b) looked to the design features applied to the bonnet as a whole, and would have been both insensible and unnecessary if the bonnet was other than an article. This stance was maintained when after further Observations had been tendered on behalf of Ford the matter came before the superintending examiner. The elaborate reasons given by the latter have now been reported: [1993] R.P.C. 399, 401, and for the sake of economy I can abstain from lengthy analysis whilst acknowledging the light which they have shed on these puzzling questions. In essence, the superintending examiner adopted the reasons previously given by the Registrar for refusing registration. The basis of his decision is contained in the following passage, at p. 411 of the report:
"... I take the view that the 'other' article in section l(l)(b)(ii) is an article of manufacture in the form in which it is made and sold, i.e. a complete article including the article in question, and that leads me to the conclusion that features of shape or configuration of any article constituting a component or replacement part for such another article are excluded from the definition of design if the author of the design intended the article in question to form an integral part of the other article.
"The exclusion would not apply to features of 'generic' articles designed for general application. This exception does not apply for the designs in suit."
As is apparent, the superintending examiner proceeded on the same assumption as the Registrar, that the individual components as well as the entire vehicles, were "articles:" i.e. that they fell within the words in section 44(1): "... any article of manufacture [including] any part of an article if that part is made and sold separately." At the hearing before the Appeal Tribunal, however, the stance of the Registrar was entirely reversed. He now asserted for the first time that most, though apparently not all, of the components were not "articles" so that the question whether the design features applied to them were excluded by section l(l)(b)(ii) could not arise, although it was still maintained by the Registrar as an alternative ground for refusing registration. Since the judgment of the learned Deputy Judge is reported I will, as in the case of Mr. Harden's reasons for decision, give only an abbreviated account of it, whilst acknowledging the valuable analysis which it contains.
On the question whether the components in suit are "articles" the Deputy Judge relied principally on the reasoning of Graham J. in Sifam Electrical Instrument Company Limited v. Sangamo Weston Limited [1973] R.P.C. 899. The subject matter of the design in that case was a design for the front of an electric meter. This component had never been sold separately, nor was it ever intended that it should be. Rejecting an argument that the meter front was a part of an article made and sold separately Graham J. said, at p. 914:
"on the whole I think the intention must be to grant registration only for such articles as are intended by the proprietor of the design to be put on the market and sold separately, such as for example a hammer handle, or the bit of a bradawl ...
"I . . . consider . . . that the only possible interpretation, which does not do violence to the intention of the Act or present Office practice, which it is not desirable to upset if it can be avoided, is to give them the meaning 'is to be sold separately.'
"The words used are 'if that part is made and sold separately,' and the phrase as a whole, to my mind, confirms that both the manufacture and sale of the part in question must be operations which are distinct from the manufacture and sale of the whole article of which the 'part' forms a component. It is necessary to imply the words 'to be' in order to construe the phrase as not including sale of the part prior to or at the date of application for registration since this would produce an absurd result contrary to section 1(2), and cannot possibly have been the intention of the legislature."
For the purpose of applying this interpretation to the present dispute the Deputy Judge divided the ten specimen components into two groups. In the first he placed components such as main body panels, doors, the bonnet lid, the boot lid, the windscreen, and such like, all of which (in his words) "form part and contribute to the overall shape and appearance of the vehicle." ([1993] R.P.C, 399, 417). Although they were very different from the meter front considered by Graham J. they were, like that component, not registrable. As the Deputy Judge put it, at p. 419:
"Here the door panels have no reality as articles of commerce apart from their forming part of a composite vehicle, unlike the hammer handle postulated by the judge which could presumably be fitted to any number of different heads."
The second group of components recognised by the Deputy Judge comprised parts which, "while in situ are contributing features to the appearance of the vehicle, are subsidiary to its essential shape." (p. 417). For instance wing mirrors, wheels, seats and the steering wheel, where substitutions are possible while leaving the general shape and appearance of the vehicle unaffected. The learned Deputy Judge referred to these as proprietary articles, which were by their nature susceptible of being made and sold separately, and (if otherwise satisfying the requirements of the statute) were not precluded from being registered.
Although the Deputy Judge had held that registration of the first group of components failed in limine because they were not "articles," in case he was wrong he went on to consider section l(l)(b)(ii). At this stage he laid stress on the word "integral." A body panel was an integral part of the vehicle. As a matter of practical common sense if a door panel was to be replaced it must be replaced by one which, for all practical purposes is the same as the original. It therefore fell within what were called the "must match" provisions of section l(l)(b)(ii). The Deputy Judge rejected an argument for the respondent that the other article, for the purposes of the subparagraph,, was the body without the door panel (or possibly both door panels). As regards the bonnet, he said, at p. 424:
"There are two [power domes] and only one is actually necessary for the purpose of providing sufficient clearance for the rocker cover of the engine, and I am satisfied that this could be achieved with a variety of different shapes, but the 'must match' consideration . . . equally applies here, and the component is not registrable."
The position of the second group of items was however different, for an owner might choose to substitute proprietary items in order to give his vehicle a sportier appearance or greater comfort, and although he might wish the component to blend in the general style of the vehicle such items would not be dependent on the appearance of another article.
In the result therefore the learned Deputy Judge held that none of the items in the first group were registrable, but that those in the second were capable of being registered, subject to the satisfaction of the Registrar about such requirements as novelty. When the matter went to the Divisional Court these short points were dealt with shortly. Delivering the only full judgment, McCowan L.J. agreed with the decision of the Deputy Judge, saying:
"Within the interpretation [section] the key words are 'made and sold separately.' To be that, an article has to have an independent life as an article of commerce and not merely be an adjunct of some larger article of which it forms a part. The selling of a mere replacement part: is not separate from the sale of the article as a whole."
On the second issue the court also agreed with the Deputy Judge in holding that the comparison with the "other article" must be with the vehicle as a whole. McCowan L.J. went on to say:
"As to design freedom [counsel for the Registrar] says that the question is whether the manufacturer of the spare part has design freedom. If he has, then he is a candidate for registration. If he has not, then he is not such a candidate. The design freedom in the latter instance is in the original designer of the car. So, with a particular spoiler which figured a fair amount in the argument, the maker of that spare part will have to produce one that looks exactly like the original, or it is unsaleable. He has no design freedom. I accept that argument."
The outcome of the dispute so far is therefore that some of the items selected as representative have qualified as "articles," and have not been ruled out under section l(l)(b)(ii); these have been remitted to the Registrar for further consideration. There is no appeal in respect of them. As regards the remainder, it has been held by the Deputy Judge and the Divisional Court that they are not "articles," and all three tribunals have decided that in any event they are excluded from registration by section l(l)(b)(ii). These are the matters arising from the judgment under appeal, although the Registrar has sought to raise additional questions to which I will return. I will begin with the issue of "article." For convenience I repeat the definition:
" 'article' means any article of manufacture and includes any part of an article if that part is made and sold separately;"
The argument in support of the appeal has been put in various ways. Of these the most attractive, and the one which reflects most closely the use of the present tense in the definition (". . . if that part is made and sold separately"), is to consider the component as at the time when the relevant operation takes place. In relation to a spare part one asks first whether it is made separately, and finds that it is; for its fabrication is not part of the manufacture of an entire vehicle. Equally, the part is sold separately; for the customer buys it without at the same time buying the rest of the car. The article thus satisfies both tests.
Whilst acknowledging the attractions of this approach, I am unable to adopt it. In the first place it must, I believe, entail that every spare part is an article, with the exception of those acquired at the time of the original purchase, a result which if intended could have been achieved by a much more direct form of words. Furthermore, in some circumstances the proposed reading would be unworkable. Take, for instance, the case of prefabricated components put into stock when made and then drawn upon either to be incorporated into complete units or sold as spare parts. If one attends to the way in which the components are actually employed the position will be that some are made and sold separately, and hence qualify as articles, and others are not; yet the design of each is exactly the same, and the design must be either registrable or not registrable. This anomaly exists because the argument looks at the characteristics of each individual article once produced and put into circulation. If the Act had been concerned with, say, consumer protection, this would no doubt have been correct. But here the legislation is concerned not with finished articles but with the design sought to be registered, ex hypothesi before the articles are made; and the articles themselves are relevant only because they form the media through which the designs intended to be registered under the statute will be put into effect. One must therefore look, not to the history of articles which already exist, but to the characteristics which they will have when the design fulfils its intended purpose. I can therefore see no escape from the conclusion reached by Graham J. in the Sifam case [1973] R.P.C, 899 that the section 44 must be read as meaning ". . . if that part is to be made and sold separately."
This is however only a first step, for the meaning of "separately" must still be ascertained. With cases at either end of the scale this can without strain be read in its ordinary sense. The design of the meter face in the Sifam case was conceived because the meter which the applicants intended to manufacture was useless without a face, and for no other reason. Nobody would sell a meter without a face or buy a face without a meter. The meter and the face were for commercial, if not for purely mechanical, purposes inseparable. At the other extreme one finds what have been called "generic" articles. Taking up the example of the brace and bit, although these are often sold in sets, the components may well be interchangeable with those of different design and manufacture. Whilst the manufacturer of the brace no doubt intends that purchasers of the brace will also be purchasers of the bit, he also hopes that bits will be purchased by those who have bought a brace made by someone else. Thus, although the two components are in many cases associated, when one bears in mind that the Act is concerned with designs, and not with sales, they can properly be regarded as separate. So also with the kind of fancy steering wheel or wheel cover offered by a manufacturer as an option, which may be designed with the intention that some of the sales will be for use with vehicles other than those marketed by the manufacturer himself.
Thus far, I do see no great difficulty. Matters are different in cases where those who brief the designer contemplate that although the component will not be capable of incorporation into complete artifacts outside the manufacturer's own range, nevertheless there will be a substantial ancillary market as replacement goods, over and above the market for the parts when incorporated in the original vehicle. As a rule, these replacement parts will not be purchased at the same time as the original artifact, and in the event they may be bought by someone other than the original purchaser. Thus, even on the assumption that it is right to read the test of section 44(1) as embracing parts which are to be made and sold separately, the design will apply equally to some parts which comply and others which do not: yet there is only one design tendered for registration, and this cannot be both registrable and not registrable at the same time.
My Lords, for these reasons I have been compelled to give up the attempt to read the words of the definition literally, and will instead look behind them for the intention of the legislature. In my opinion the purpose was to distinguish between, on the one hand, an item designed for incorporation, whether as a spare part or as an original component, in a particular article or range of articles made by the manufacturer of the component, and on the other an item designed for general use, albeit perhaps aimed principally at use with the manufacturer's own artifacts. Whilst it is often unwise to restate the effect of a statute in different words, since this may lead to the new formula being subjected to the kind of textual analysis which ought to be reserved to the statute itself, an answer will I believe be supplied in many cases by applying the criterion given by McCowan L.J., namely: that to qualify under section 44(1) a spare part has to have an independent life as an article of commerce and not be merely an adjunct of some larger article of which it forms part.
This conclusion is sufficient to dispose of the appeal, which is concerned solely with the Deputy Judge's first group of components. His decision that items in the second group were in principle registrable was not the subject of any application for judicial review or of any order by the Divisional Court, and accordingly is not before the House. As to the first group of items, because the issue under section 44 did not arise until the hearing before the Deputy Judge, the case is wholly denuded of any evidence about the intentions of Ford as to the independence or otherwise of the components as articles of commerce. Nevertheless, inspection of the list of components shows that they cannot have been conceived as items of commerce on their own, and indeed I did not understand Ford to have suggested that they were registrable if the interpretation of section 44 which I have preferred is correct.
In the light of this conclusion the question arises whether your Lordships should express an opinion on the second issue, which concerns the identification of "another article" with which the design sought to be registered must, by virtue of section l(l)(b)(ii), be compared. At first sight there is much to be said for doing so. This is the only issue which has been in contention throughout. All three of the tribunals previously seized of the case have expressed opinions about it, and full argument has been devoted to it in this House. From the point of view of the industry and of those who administer the law of registered designs it will no doubt be regretted if the House leaves the matter in the air.
Nevertheless, for more than one reason I believe that your Lordships should not engage this question. In the first place, since the answer to it cannot affect the outcome of the appeal, the correctness of the opinions expressed in the courts below would remain unresolved. Moreover it seems likely that the practical utility of an answer would be quite small. Consideration of the issue would require two assumptions to be made. First, that the component is manufactured by the person who manufactures the article of which it is intended to be a part. (I make this point because there are a number of references in the judgments and other materials to the position of third-party manufacturers, and what has been called their "design freedom". Your Lordships are not concerned with this. All the items in dispute were designed by Ford for incorporation in vehicles of their own manufacture.) Secondly, the designer contemplated that the component would be apposite for use in relation to vehicles other than that for which it was designed, for otherwise it would not be an "article" within the meaning suggested above, and would not qualify for registration whatever the meaning of section l(l)(b)(ii). My Lords, on these assumptions it seems that the question argued on the appeal cannot often arise. Imagine that a person employed by manufacturer M to design vehicle V is contemplating as part of his task the design of component C. Ex hypothesi, his design of C must (according to whichever interpretation of section l(l)(b)(ii) is correct) be constrained in some degree by the appearance of V. If it is so constrained, I suspect that there will not be many cases where the component C can be adaptable enough also to be accommodated within vehicle W, made by manufacturer N, as it must be if it is to be an independent article of commerce,, There is another, to my mind cogent, reason not to enter upon this territory. This may be explained by reference to the power domes formed in the bonnet. Throughout the history of the dispute attention has been concentrated on the component as a whole, on the bonnet rather than on the domes. On the first of the issues for decision this was plainly right, since the question was whether the bonnet, which was the component to which the design of the domes was to be applied, qualified as an article. Nobody sought to contend, or could have contended, that the domes themselves were articles. But the position may be different regarding the second issue. This arises under section 1 which as the heart of the Act is concerned with potentially registrable "features of shape, configuration, pattern or ornament" and with the novelty which these features must possess in order to be registrable. It is with these design features and not directly with articles that section 1 is concerned: for, as I have already suggested, articles are of no significance under the Act except as the media through which the designs sought to be registered are put into practice. In spite of this, the arguments on section l(l)(b)(ii) have been focused almost entirely on the articles themselves. (I say "almost entirely" because although the entire bonnet was claimed as new Ford's written observations did narrow the discussion to the domes.) The Registrar now seeks to contend, by an argument raised for the first time in this appeal, that in this respect the discussion of paragraph (b) has been entirely misconceived. He should have asked himself, and the successive tribunals should have asked themselves, not whether the shape etc. of a component was dependent on the appearance of the other article, but whether the design feature of the component claimed as new was so dependent; for if the feature was not new the possibility of registration could not arise - see section 1(2).
My Lords, I believe that in the ordinary way your Lordships would have felt little hesitation in declining to entertain the new argument. The Registrar has already changed the face of the dispute once, when he successfully addressed to the Deputy Judge an argument on section 44(1) not mentioned either in his long-delayed response to the original applications or in his submissions to the superintending examiner. Now, at the very last moment, he seeks to change the intellectual base of the enquiry once again. Secondly, as his printed case makes quite clear, the new argument involves the proposition that the complex and closely-reasoned opinion of the Privy Council delivered by Lord Oliver of Aylmerton in Interlego A. G. v. Tyco Industries Inc. [1989] AC 217 was wrong in an important respect - for the interpretation now brought forward, although apparently not pursued in that case, was recognised at p. 242 of the opinion, albeit only to be summarily dismissed. Such a question would, in accordance with the usual practice of the House, be left aside for some future occasion, when it could be squarely raised at the outset, and advanced before specialist tribunals and courts whose judgments could form the basis of the debate before the House.
The position in the present case is however rather more complicated. Counsel for the Registrar has asserted that it is impossible to resolve the dispute under section (l)(l)(b) without first deciding whether the approach rejected by the Board in the Interlego case was after all correct. Counsel for Ford challenged this assertion, but the matter was not explored at any length in argument and I am hesitant to conclude upon it without further enquiry. It follows that before your Lordships could express any opinion on section (l)(l)(b) they would be required first to receive submissions on whether the Interlego point does in reality bear on the meaning of paragraph (b); and, if they concluded that it does, would then go on to conduct a full review of what was said in the Interlego case, all of this being no more than a preliminary to the expression of an opinion on a question which does not affect the outcome of the appeal. For my part I cannot accept that such proceedings would be justified. I appreciate that these are points of considerable interest both to the motor trade and to the Registry, and that much effort has been spent on analysis of paragraph (b) before three successive tribunals. Nevertheless I think it much better, now that the Registrar has introduced this new feature, for the whole matter to be explored methodically before specialist tribunals against the background of specific findings of fact.
These observations apply with particular force to certain additional questions brought forward by the Registrar. They are best illustrated by a passage from his printed case. It reads as follows:
"24 There are two further minor parts of subsection (l)(b)(ii) which are relevant to the present exercise although it is not thought that there is any great difference between the parties on them. The first is the meaning of 'intended by the author of the design' and the second is the meaning of 'integral part'."
I am afraid that this shows a misapprehension by the Registrar or his advisers about the nature of an appeal to your Lordships' House. The purpose of the "exercise," as it is called, is not to provide the occasion for a ramble through the statute, with a pause for your Lordships to express an opinion on every point of interest, and still less for discussion into minor issues on which there is not any great difference between the parties. The procedure is adversarial, not advisory, and as I understand the practice your Lordships will not enter even into important questions unless there is a direct issue upon them between the parties to the suit. I therefore propose that your Lordships should not accept the invitation to discuss the meaning of "intended by the author of the design" and "integral part." Similarly, although submissions have been made on the meaning of "dependent," a word which also appears in paragraph (b), and which may indeed be of importance when the Registrar comes to consider individual cases, a conclusion upon them is not necessary for a decision on whether or not the appeal should be allowed. It is possible that if the controversy had come forward in a less abstract form, with reference to specific issues illuminated by much more extensive and concrete evidence, some of these points might have been the subject of decisions below which could be reviewed on appeal. This is not the case, and the matter can be taken no further.
In these rather unsatisfactory circumstances I propose that your Lordships should do no more than dismiss the appeal on the ground debated under the first issue. I should record that although reference was made in argument to the Parliamentary history of the Act, I have found that on this question it affords no useful guidance.
LORD SLYNN OF HADLEY
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Mustill. I agree that the appeal should be dismissed for the reasons he gives.
