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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Walkinshaw & Ors v Diniz [2001] EWCA Civ 836 (25 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/836.html Cite as: [2001] EWCA Civ 836

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(Mr Justice Tomlinson)

		Royal Courts of Justice Strand
		Friday, 25th May 2001

1. LORD JUSTICE WALLER:This is an application for permission to appeal to the Court of Appeal. Permission was initially refused on paper by my Lord, Lord Justice Clarke. We have given anxious consideration to the matters that arise and we think it would be wrong not to give permission to appeal in this case.
2. Essentially, as it seems to us, there is a point on construction of clause 7.1. We give no encouragement to the appellants in relation to it, but it would seem to us that there is a point that arises. We also give no encouragement to the appellants in relation to whether a breach can be established, even on their construction; but again, to rule on that on an application for permission to appeal seems to us not to be right.
3. There are two other points. The first is the letter point. Since the matter is going to appeal anyway, it seems to us that the letter point should go too. As regards amendment, we think that in that instance the judge may well have applied the wrong test if he was applying Henderson v Henderson to the application for permission to amend as such. Again, since the whole matter is now going to the Court of Appeal, it seems to us that permission should be given on that ground also.
4. Thus permission will be granted.
Order: application for permission to appeal granted; costs of today's application to be costs in the appeal.