A B VOLVO AND ANOTHER v. TANFORY CO LTD t/a CLUB VOLVO

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JUDGMENT

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Sir Derek Cons, Acting C. J.:

1. This is an application for leave to appeal to Her Majesty in Council from a decision of this Court, given on the 29th of last month, whereby we set aside the order of Barnes, J. who had granted trial by jury on one particular issue in the action from which these proceedings spring. Two issues were raised by those proceedings, one infringement of trademark, and the other passing off. The order for trial by jury was given in respect of liability for passing off only. Leave to appeal is necessary because that was not a final judgment and we can only give leave if, in our opinion, the question to be raised by the appeal is one which involves matters of great general, or public importance or otherwise ought to be submitted to Her Majesty in Council.

2. Mr. Swaine, for the Defendants who seek trial of this one issue by jury, has argued that the decision given by this Court involves a construction of Section 33A(3) of the Supreme Court Ordinance, Cap. 4, being the equivalent of Section 69(3) of the Supreme Court Act 1981, which, as far as he is aware, has not yet been construed either in England or in this jurisdiction; the decision would, if left to stand, be regarded as a precedent for all similar applications.

3. I have to say that I heard with some surprise the suggestion that I had laid down any general principle applicable to all applications under that subsection. I certainly had no intention of so doing. I was attempting, albeit ineptly, merely to apply the words of the section to the particular circumstances with which we were concerned. I note that I prefaced my comments with the words "in the present circumstances".

4. I am not persuaded that the reasons I gave below in fact do lay down any general precedent to be applied. I am satisfied that they are limited to the particular circumstances in question and do not raise any matters of general or public importance. For that reason I would refuse the application.

Kempster, J.A.:

5. I agree that the application should be refused on the grounds enunciated by My Lord the Vice President. This was a decision on the application of the terms of Section 33A(3) of the Supreme Court Ordinance to particular facts.

Macdougall, J.A.:

6. I agree with what My Lord has said. I too would refuse this application.