The Gazette 1967/71

about other matters which should be given early priority. It is the sub-committee's intention to keep the material in the form in which it is given to them, but in any case where this is not possible and the. return of a document is required, this should be indicated by the sender. Future Meetings Thursday, 26th October 1967, at Buswells Hotel, at 8 p.m. "Current High Court Practise" with discussion on possible modifications by Denis R. Peart. Autumn Seminar Arrangements are well in hand for the autumn seminar which will take place in the Talbot Hotel, Wexford, in November at a weekend, the dates of which will be announced shortly. CASES OF THE MONTH Dangerous Driving—Change of Issue The defendant was charged with causing death by dangerous driving. Summing up, the trial judge directed the jury, inter alia. "... I must tell you that counsel for the defence is wrong in saying that if you thought this was only careless driving it could not be dangerous." The jury convicted the defendant and he appealed against conviction on the grounds that the judge misdirected the jury, inter alia, in telling them that the defence was wrong in submitting that the prosecution had to prove that the defendant's driving amounted to dangerous driving as distinct from driving which was careless or without due care and attention. Sachs, L.J., during the course of giving the judgment of the court, said that careless driving might well be dangerous but all careless driving was not necessarily dangerous driving. It seemed to the court that it was right to say something which had been said on circuits by many judges in many cases : any attempt by defending counsel to introduce the subject of whether the offence was one which could properly be termed careless driving and therefore not one of dangerous driv– ing, was bound to produce confusion with the jury. Time after time judges on circuits stopped both the questions and argument on that point, and it should be plainly stated that the court approved of the course taken by those judges who stopped that manner of seeking to establish that the driving was not dangerous driving. In this particular case, the driving was a quite atrocious piece of driving on the part of the defendant and

there was no room whatsoever for any argument to be raised in his defence that the jury should have taken the view that he ought only to have been prosecuted for careless driving. Appeal dis– missed. [R. v Scammell, The Solicitors Journal (Vol. Ill), p. 620]. Contract: Hire Purchase The defendant obtained a Jaguar car from the plaintiffs on hire-purchase terms. The cash price was £1,095 and he paid an initial instalment of £219 with monthly payments of £24-9-1 payable thereafter. By clause 8 of the agreement, the finance company had an option to terminate the agreement on the hirer's breach and by caluse 10 an option was given to the hirer to terminate by returning the goods to the finance company. Under clause 11, if either of these options was exercised, the hirer was liable for a minimum payment of two-thirds of the total hiring cost. When the first monthly payment was due, the hirer was unable to meet it and informed the company accordingly. Three weeks later he sent a letter dictated by the company's representative stating that he wished to terminate the agreement. In reply the company warned him that he would be liable for £709-10-8 under the minimum pay– ment clause. Subsequently during the proceedings they reduced the claim to £271-16-0 and amen– ded the claim to allege repudiation. On appeal it was held : 1. The hirer had not exercised his option to terminate the agreement as he had not complied with the conditions for returning the car con-. tained in clause 10 and because a hirer should not be taken to exercise such an option commit– ting him to pay a large sum unless he is aware of his liabilities. 2. Even if the hirer had wrongfully repudiated the agreement, the company had not accepted the repudiation but sought to sue on clause 11; the amending of the pleadings did not amount to an acceptance of the repudiation. In the absence of acceptance the repudiation was of no effect. 3. In the absence of consensual termination, the company must be taken to have terminated under clause 8. In these circumstances clause 11 was a penalty clause and unenforceable. The com– pany could only recover for such breaches as occurred before termination, in this case non– payment of one monthly instalment. However, the company had not sued for this sum and the claim was now statute-barred. [United Dominions Trust (Commercial) Ltd. v Ennis (1967) 3 WLR 1; (1967) 2 All.E.R. 345. 41