Jaffray & Ors v The Society of Lloyds

These are unusual applications in an unusual case. The applicants seek, under the jurisprudence of Taylor v Lawrence [2003] QB 528, to reopen the decision of the court in this case [2002] EWCA Civ 1101. This court dismissed an appeal from Cresswell J [2000] All ER (D) 1674 in proceedings in which these and other applicants sought remedies in deceit against Lloyds. The terms of the representations said to found that deceit are in issue in one respect in this application, and we return to the point in §§ 54 and followingbelow. For the moment, however, it suffices to say that the claim in this case, in the respects relevant to these applications, was that in the “brochure” published by Lloyds in 1981 and later years representations were made that Lloyds operated a rigorous system of auditing that enabled reasonable estimates to be made of the outstanding liabilities of syndicates, including unreported and unknown losses, and thus proper reserves to be made against those potential losses. On the strength of such representations the applicants, including the lead claimant in the action Sir W Jaffray, became underwriting members (“names”) of Lloyds. They suffered serious financial losses by becoming liable to compensate insureds in respect of the latter’s liabilities for injury caused by earlier exposure to asbestos, the existence and extent of such pending liabilities not having been identified by the Lloyds accounting system, and thus not properly reserved against.

Cresswell J held that no relevant representations had been made. He was reversed on that issue by this court, which held that representations in the terms set out above had been made. This court further held (with, as the court said at §375 of its judgment, the benefit of hindsight) that those representations had been untrue. Cresswell J also held that, even if the alleged representations had been made, the names had not proved that Lloyds did not believe the representations to be true; nor had the names proved that Lloyds had been reckless as to whether the representations were true or false. This court upheld Cresswell J on those latter issues, and therefore in the event upheld his dismissal of the claims.

The names now assert that further evidence has come to light that shows that Cresswell J was misled by Lloyds evidence at the trial as to the state of its knowledge and belief, and thus this court, which necessarily based itself on that same evidence, was similarly misled. It will be convenient to mention here that the further evidence on which reliance is placed in this application is virtually the same as the evidence that is sought to be introduced into another appeal arising out of many of the same events and involving many of the same parties, Lloyds v Henderson [2005] EWHC 850 (Comm). In those proceedings Lloyds claims against various names in respect of liabilities as a result of policies written by them, which claims the names seek to resist because of misbehaviour, including fraud, on the part of Lloyds. In that action the names have an outstanding appeal to this court against a decision of Andrew Smith J refusing them permission to amend their pleadings to allege Misfeasance in Public Office against Lloyds (the alleged acts of misfeasance closely mirroring the acts of deceit alleged in this case), which also involves an application by the Names for permission to rely on the fresh evidence. That appeal is to be heard in the last week of July. It should have been heard last November, but was adjourned because on the day before the hearing the names parted company with counsel then instructed to argue the appeal. The present, Taylor v Lawrence, application had been filed at or about the same time as the appeal in Lloyds v Henderson, but the Taylor v Lawrence application was regrettably overlooked in the court’s filing system, a matter for which the court has apologised to the names and to their representatives. That is why it only comes on now. The major number of the names concerned, conveniently referred to as the UNO names, are represented by the same solicitors and counsel both in Lloyds v Henderson and in this case.

This Taylor v Lawrence application is being heard in open court, and not disposed of simply on paper as is the usual practice, because it arises in a long-standing and highly contentious dispute, and also because of its substantial links with the appeal in Lloyds v Henderson. It must by no means be thought that this process, and the elaborate exchanges to which it has given rise, creates any sort of precedent for other Taylor v Lawrence applications, which will continue to be discharged by the summary process mandated by CPR 52.17.4.

Before us the UNO names made common cause, represented by Mr Jenkins of counsel. Two applicants addressed us on their own behalf, Mrs Adams, for whom her husband spoke, and Mr Butler. In response to a direction of the court that sought to impose some order on the proceedings the UNO names had submitted a 27 page statement of their case, and also, in addition to making reference to the further evidence that has been produced in Lloyds v Henderson, submitted a further witness statement, running to 34 pages of single-spaced typing, from one of their principal witnesses, Mr Stephen Merrett. Further, on the day before the application was heard the names submitted a further substantial statement, from which it became clear that the focus of the argument had shifted somewhat since its original formulation. In reply to the names’ written arguments, Lloyds submitted a 56 page document, which additionally referred to the extensive written arguments in the forthcoming appeal in Lloyds v Henderson.

In order properly to understand the issues in this application it is necessary first to say something in general terms about the jurisprudence of Taylor v Lawrence.

Mr Jenkins argued that since the application was made under CPR 52.17 the court should start from, and apply, the plain wording of that rule, and in particular the reference in CPR 52.17(1)(a) to appeals being re-opened “in order to avoid real injustice”. That general rule prevailed over any previous jurisprudence that might be argued to limit the jurisdiction to any particular category of cases, for instance where the earlier decision had been obtained by fraud. Accordingly, the court should not take time with analysis of Taylor v Lawrence itself, or of the cases underlying it, but should ask itself whether this appeal should be reopened in order to avoid real injustice in a broadly discretionary, essentially palm-tree, frame of mind.

That approach is quite misconceived. The CPR, being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique [1893] AC 602 at p 628. And quite apart from that general rule, it is apparent from the wording of CPR 52.17(1) (which speaks of the jurisdiction not being exercised unless various conditions, including avoidance of real injustice, are fulfilled) that, as the helpful commentary in vol 1 of Civil Procedure explains, it was passed to limit, and not to extend, the operation of the supposed jurisdiction under Taylor v Lawrence.

The applicants cannot therefore avoid, any more than can this court avoid, detailed analysis of the extent of this court’s jurisdiction to re-open determined appeals.

Taylor v Lawrence concerned (alleged) misconduct by a court, in that the judge was said to have been biased. There is no authority in that case for extending the recognition of jurisdiction to re-open an appeal on grounds of bias to a case such as the present, where the allegation is not that the court misbehaved, but that the court was misled by one of the parties; and there is authority directly denying the existence of jurisdiction in the latter case both in this court (Flower v Lloyd (1877) 6 ChD 297) and in the House of Lords (Jonesco v Beard [1930] AC 298), it being held in both of those cases that the proper remedy is to bring a collateral action to set aside the judgment allegedly obtained by fraud.

We have not felt able to act on that conclusion in the present application, even though what is in issue is a matter of jurisdiction, first because the point was not argued; and second because in a series of cases since Taylor v Lawrence this court has assumed, without the matter being argued out, that the jurisdiction of Taylor v Lawrence does extend to cases of fraud as well as to cases of bias. However, even on that assumption, there is no doubt that the very stringent limits stated in Taylor v Lawrence, that the jurisdiction should only be exercised in exceptional cases where there is no alternative remedy, apply just as much in cases of fraud as they do in cases of bias.

We now explain those propositions in some greater detail.

In Taylor v Lawrence an appeal against the order of the court below was founded on an allegation that the trial judge had been relevantly biased. After that appeal had been dismissed, further evidence emerged, which was said to demonstrate the judge’s partiality to one of the parties more clearly than the evidence relied on in the original appeal. The first, and indeed main, issue that confronted this court was whether, despite the general principle of finality of judgments, it had jurisdiction to re-open a final determination of the Court of Appeal in a case where bias was alleged on the part of the lower tribunal. Although that issue was debated at some length, the answer to purely jurisdictional questions in a case of bias was to be found in the decision of the House of Lords in Pinochet(No2) [2000] 1 AC 119, in the speech of Lord Browne-Wilkinson at p132. The House of Lords relied on its jurisdiction to control its proceedings, unfettered by any statutory limitation. This court recognised in Taylor v Lawrence that, unlike the House of Lords, the Court of Appeal’s jurisdiction is wholly created by statute, but held that nonetheless, like any other court, it had inherent power to take steps to maintain the court’s character as an (unbiased) court of justice: see per Lord Diplock in Bremer Vulcan [1981] AC 909 at p977, cited to this effect by Lord Woolf in Taylor v Lawrence at §52. Accordingly, the Court of Appeal could take the same approach to the corruption of the judicial process by bias as had the House of Lords in Pinochet.

That, however, was as to the existence of the jurisdiction. As Lord Woolf pointed out, it is a very different question to ask how that jurisdiction should be exercised. The court gave guidance on the exercise of the jurisdiction in §§ 54-55 of Taylor v Lawrence:

There…needs to be a procedure which will ensure that proceedings will only be reopened where there is a real requirement for this to happen. One situation where this can occur is a situation where it is alleged, as here, that a decision is invalid because the court which made it was biased. If bias is established, there has been a breach of natural justice. The need to maintain confidence in the administration of justice makes it imperative that there should be a remedy. The need for an effective remedy in such a case may justify this court in taking the exceptional course of reopening proceedings which it has already heard and determined. What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy…..Where the alternative remedy would be an appeal to the House of Lords this court will only give permission to reopen an appeal which it has already determined if it is satisfied that an appeal from this court is one for which the House of Lords would not give leave.

So far so good. But the present case is not one in which the court is said to have misbehaved, by bias; but one in which the court is said to have been misled by misbehaviour, in the form of perjury, by one of the parties. That issue was also addressed in Taylor v Lawrence, and was seen by this court as raising distinctly different issues from those that arise in a case of bias. Before the creation of an appellate court with general statutory authority by the Judicature Act 1873 decisions of lower courts said to have been obtained by fraud could only be dislodged by collateral means, by the bringing of a fresh bill in chancery. In Flower v Lloyd (1877) 6 ChD 297 this court had to decide whether the new Court of Appeal could, in effect, take over that jurisdiction, by permitting the reopening of determined appeals that were alleged to have involved a fraud on the court. This court held that it had no such jurisdiction. The complaint as understood by the Court of Appeal, 6 Ch D at p299, was that there had been “subsequent discovery of facts which show or tend to show that the order of the Court of Appeal was obtained by a fraud practised on the court below”. That, it will be appreciated, is exactly the same complaint as is made in our case. The Court held that such a complaint must continue to be made, as before the Judicature Act, by collateral action. As Jessel MR put it, at pp 300-301, if this court has once determined an appeal, it has no further jurisdiction.

In §25 of his judgment in Taylor v Lawrence Lord Woolf pointed to dicta in other cases shortly after Flower v Lloyd in which a different view had been suggested. He also mentioned two cases of more recent vintage, including Wood v Gahlings The Times, 29 November 1996, a decision of Lord Woolf MR, that assumed, without deciding, that the court had jurisdiction to reopen an appeal in a case of fraud as well as of bias. But Lord Woolf did not suggest, nor with deference could he have done, that Flower v Lloyd had ceased to be good law: indeed, at §25 of Taylor v Lawrence Lord Woolf accepted that there is no subsequent case which is in direct conflict with Flower v Lloyd.

That this court in Taylor v Lawrence accepted the continuing authority of Flower v Lloyd in cases of fraud is further illustrated by its appreciation that in order to reach the conclusion that it had jurisdiction in a bias case the court had to distinguish Flower v Lloyd. That it did by saying, at its §49, that

It is the reality of the situation which means that we cannot, as Sir George Jessel MR did in Flower v Lloyd, take refuge in the fact that there is an alternative remedy. If there is no effective right of appeal to the House of Lords and this court is the only court which can provide a remedy then in our judgment there can arise the “exceptional circumstances” to which Russell LJ referred in In re Barrell Enterprises [1973] 1 WLR 19.

And it was in those circumstances that there arose the power of the court, like any other court, in the words of Lord Diplock in Bremer Vulcan at p 977, already quoted, to do what was necessary to maintain its character as a court of justice. That, as we have seen, was what permitted the Court of Appeal to deal with cases of bias on the basis adopted by the House of Lords in Pinochet(No 2).

That distinction turns on the perceived absence of an alternative remedy in a bias case, at least where the court is satisfied that there is indeed no alternative because the case is one in which the House of Lords will not give leave. But in a fraud case there is always an alternative remedy, as Jessel MR and Lord Woolf said, in the shape of a fresh action to set aside the original decision.

In terms of precedent, therefore, Taylor v Lawrence itself is only authority for the proposition that the Court of Appeal has jurisdiction to reopen an appeal in which judicial bias is alleged, and then only if satisfied that the House of Lords would not give leave to appeal the original decision of the Court of Appeal. That the court has no such jurisdiction in a case of fraud is decided by the authority of the Court of Appeal in Flower v Lloyd. But that proposition is supported not just by authority in this court but also by a binding decision of the House of Lords.

Jonesco v Beard [1930] AC 298 is important not only because the House approved Flower v Lloyd, but also because it held that complaints of fraud practised on a lower court must be made by way of collateral action and not by way of appeal: that is, not even by an initial appeal, let alone by seeking to reopen an appeal that was already concluded. In that case the Court of Appeal had set aside a judgment that had been obtained by fraud, and ordered a retrial. The House of Lords reversed that decision. Lord Buckmaster, giving the only substantive speech, said at pp 300-301:

It has long been the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by action which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires. In Flower v Lloyd (1877) 6 Ch D 297, 302 the Court of Appeal, consisting of Jessel MR, James and Baggallay LJ, held that there was not jurisdiction in the Court of Appeal to entertain a similar application with regard to one of their own judgments. James LJ states that “you cannot go to your adversary and say ‘You obtained the judgment by fraud and I will have a rehearing of the whole case’ until that fraud is established.” Flower v Lloyd, Cole v Langford [1898] 2 QB 36 and Baker v Wadsworth (1898) 67 LJ (QB) 301 show that the right procedure for that purpose is by action. That, however, there is jurisdiction in special cases to set aside a judgment for fraud on a motion for a new trial may be accepted. Hip Foong Hong v Neotia [1918] AC 888 is such a case; but it should be remembered that this case had come up to the Privy Council on this procedure and the Board would naturally be unwilling to defeat a case at its last stage on such a ground.

It should be noted that Hip Foong Hong was not concerned with the reopening of an appeal, the subject-matter of the rule in Flower v Lloyd and of the application before us, but with a motion to the original court for a retrial. However, even in that context, and to touch on a matter that we will have to consider in more detail below, the Board at p 894 made some general observations about procedure:

…where a new trial is sought upon the ground of fraud, procedure by motion and affidavit is not the most satisfactory and convenient method of determining the dispute. The fraud must be both alleged and proved; and the better course in such a case is to take independent proceedings to set aside the judgment upon the ground of fraud, when the whole issue can be properly defined, fought out, and determined, though a motion for a new trial is also an available weapon and in some cases may be more convenient

We are accordingly of the view that Flower v Lloyd and Jonesco v Beard preclude the reopening of an appeal on grounds of fraud perpetrated on the lower court, the proper recourse in such a case being an action to set aside the original judgment. That, however, is not how the issue has been approached in decisions subsequent to Taylor v Lawrence. We were shown four cases in this court subsequent to Taylor v Lawrence in which jurisdiction to reopen appeals on grounds of fraud has been assumed. Those cases are Couwenbergh v Valkova [2004] EWCA Civ 676; Re Uddin [2005] 1 WLR 2398; Pell v Express Newspapers [2005] EWCA Civ 46; and First Discount v Guinness [2007] EWCA Civ 378. The issue, based on Flower v Lloyd and the treatment of that case in Taylor v Lawrence, of whether the Court of Appeal has any jurisdiction to reopen an appeal in a case of fraud, was not addressed in any of these cases: though it right to say that in Uddin, at §20, this court viewed the Taylor v Lawrence jurisdiction as appealing to the correction of injustice, stated in very broad terms, and not limited to particular cases such as bias or fraud. How that view sat with Flower v Lloyd and Jonesco v Beard was not explored: Flower v Lloyd was not put to the court in these terms, and the court was not even shown Ionesco v Beard.

We therefore remain of the view that the Flower v Lloyd issue remains open, and in another case it will be possible to explore whether this court indeed has any jurisdiction to reopen an appeal on grounds of fraud perpetrated on the court. We accept, with some hesitation, that that will indeed have to be in another case, despite the issue being one of jurisdiction, because, no doubt because other divisions of this court have accepted jurisdiction in fraud cases, this preliminary point was not relied on by Lloyds in this application. We will therefore proceed on the assumption, but by no means deciding, that this court does have jurisdiction to reopen a determined appeal on grounds of fraud.

That, however, leads us to the question of when, if at all, that jurisdiction should be exercised. In only one of the four cases mentioned above, Couwenbergh, was relief actually given, and then in very singular circumstances as we will later demonstrate. In the other four cases, careful warnings were given about the strict limits that have to be placed on the exercise of the jurisdiction in a fraud case.

It will be convenient to start an analysis of the proper exercise of the jurisdiction in a fraud case with the observations of Butler-Sloss P in Uddin: and that not least because in First Discount v Guinness this court held, at its §10, that to the extent that Uddin differs from Couwenbergh the former must prevail. The guidance given in Uddin has, we emphasise, to be read bearing in mind the doubts mentioned in §22 above as to whether the court should have been addressing the issue at all. That guidance can be summarised as follows:

That analysis was developed by this court in First Discount v Guinness by saying that it may be enough to invoke Taylor v Lawrence to demonstrate that corruption of the earlier process, eg by the giving of perjured evidence, has probably occurred; but that the court must then be satisfied that there is a strong probability that the corruption affected the result of the first case. How is it to be decided that the fresh evidence sufficiently demonstrates corruption of the earlier process? That question was addressed by Rix LJ in Pell. He referred to what had been said in Jonesco v Beard about the proper method of impeaching a judgment being by way of action, and then said at his §48:

Even if that practice were to be regarded as less settled, so that it is a matter of discretion on the particular facts of each case whether such an allegation of fraud should proceed by way of appeal or by way of fresh action, nevertheless it is in my judgment clear that in this case Mr Pell should be required to proceed by way of fresh action and not by way of appeal. First, the alleged fraud is hotly disputed. Second, in a complex case the allegation has yet to be clearly and properly set out in the way in which only pleadings can clarify. Thirdly, the appeal process is an unsatisfactory basis for the analysis of an untried allegation of fraud.

Those observations importantly remind us, amongst other things, of the limits of this court’s procedures and powers. Take the present case. The central allegation is that evidence has emerged since the first appeal that arguably demonstrates that evidence given at the trial was perjured. If the appeal is to be reopened on that basis the following steps have to be gone through. First, the court must be satisfied that the new evidence is admissible under Ladd v Marshall principles. That was the basis of the court’s approach in Uddin. Second, it must be shown on the basis of that evidence to be probable that corruption of the earlier process in fact occurred (First Discount). Third, there must be a strong probability that that corruption affected the result of the first trial. The nature of the second and third enquiries means, as Rix LJ pointed out, that unless the case is so clear as to be in effect incontestable this court is neither equipped to undertake the enquiry nor able to give any immediate remedy if it were to find that the allegations are established. That is why Sir Martin Nourse said, summarising the jurisprudence in §25 of the judgment of this court in Sohal v Sohal [2002] EWCA Civ 1297, and echoing Jonesco v Beard, that even a first appeal should be pursued on grounds of perjury only at the trial, as opposed to leaving the matter for a fresh action, if the allegation of fraud “could be clearly established” (per Lord Woolf in Wood v Gahlings) or (which was thought to come to the same thing) the fresh evidence or its effect is not “hotly contested” (per Lord Phillips in Hamilton v Al Fayed, 21 December 2000, unreported).

These concerns also engage the remedies available in this court, as well as its powers of investigation. We again refer to the present case. Even if we were to be persuaded that there was a strong possibility that on the reopening of this appeal the court hearing that renewed appeal would conclude that it was probable that corruption of the earlier process had occurred, it is difficult or impossible to see how that court could grant any relief other than a retrial: because it would be beyond the power, or good sense, of the court to conclude that even if perjury had probably been committed in the respects on which the applicants rely it was so plain that that had affected the outcome of the case that the court should there and then substitute a different decision. Indeed, when Mr Jenkins was asked what ultimate outcome he envisaged as following from this application he agreed, after some discussion with the court, that at the reopened appeal his evidence would have to be tested, probably by extensive cross-examination, together with evidence on the other side, not least from those now saidto have committed perjury; and still that the only feasible outcome of all of that process would be an order for retrial. The suggestion that that retrial could be limited to the matters recently raised was quite unreal. Those matters cannot be properly determined except in the context of the whole complaint.

To proceed by way of reopening the appeal would, therefore, simply add another step on the road to the sort of enquiry into the substance of the perjury and its effect on the original proceedings that would be provided by a collateral action. It is therefore not merely a matter of jurisdiction but also a matter of practicality that dictates that in all but the most exceptional case complaints such as the present should be pursued by way of a fresh action to set aside the original decision, rather than by reopening the appeal.

Such an exceptional case was identified by this court in Couwenbergh. The facts were in quite different compass from our case. The dispute concerned the validity of a will. At first instance, and in the original appeal, it was accepted that the will had been properly attested, the issue turning on the capacity of the testator. The party challenging the will lost at both levels, and incurred a very substantial liability for costs. Evidence then emerged, held by this court to be admissible under the Ladd v Marshall test, that suggested that the alleged attestors had not in fact signed the will, and that the claim to the contrary effect in the original trial had been fraudulent. The issue, although no doubt controversial, was thus limited to a short and discrete question, of whether or not the witnesses had attested the will: it being undisputable that, if they had not done so, the will was invalid.

This court, whilst setting out the limits of the Taylor v Lawrence jurisprudence, identified two particular features of Couwenbergh that enabled it to give permission for the reopening of the first appeal, as opposed to leaving the complainant to bring a fresh action. First, a retrial (which the court recognised would be the only relief that it could order) would be a short and simple matter, with no fresh pleadings because the issue was already clearly joined, and only a small part of the case needed to be retried. Second, the Court of Appeal in §28 of its judgment identified as the potential substantial injustice of the first trial that the order for costs there made might turn out to be unfair; and in §39 said that the most important consideration pointing towards reopening the appeal was that at a retrial the judge could make a flexible and comprehensive order as to the costs of the whole proceedings, in a way that, it was thought, would not be open to the judge hearing a fresh action. It is not by any means clear that the latter assumption was correct, since there is no obvious reason why the relief claimed in a fresh action should not include the discharge of the costs order made on an erroneous basis in the first action. But, however that might be, the perceived centrality of the costs issue in Couwenbergh was a very powerful consideration driving the court towards ordering the reopening of the original appeal.

The present applicants originally sought to argue that this case is on the same level as Couwenbergh, but that contention was impossible, and Mr Jenkins properly did not seek to press it in oral argument. A new trial in our case could not simply start from the pleadings and assumptions of the old trial. That is because the new evidence does not, as in Couwenbergh, contest a simple issue of physical fact, whether the will was attested or not; but is said to cast light on the state of mind, knowledge and intentions not just of the men who are said to have committed perjury but also of the body of Lloyds members of which they were part. That will require sophisticated comparison of what is now said to be proved against the perjurers with what was demonstrated at the trial. We do not go so far as to say of Couwenbergh what Rix LJ said in §49 of his judgment in Pell, that the idiosyncrasies of that case in no way guide the solution of this application, but it is quite clear that Couwenbergh cannot be relied on for any solution outside the ambit of its own particular facts.

The applicants are faced with a significant preliminary difficulty. There are serious issues as to whether the evidence on which they seek to rely is admissible at all at appellate level, bearing in mind the preconditions for admission of evidence laid down in Ladd v Marshall. Lloyds raise two objections. First, it is strongly argued by Lloyds that most or all of the witnesses were available to the applicants at the time of the trial before Cresswell J, or could have been obtained by the exercise of reasonable diligence. Mr Merrett falls into a somewhat different category, but his unavailability was largely the result of the fact that at the time of the original trial he was one of the persons accused by the names of fraud in Lloyds v Jaffray; a claim that as we understand has still not been formally withdrawn, though no doubt no longer pursued. Second, much of the new evidence, and in particular that of Mr Merrett, consists of commentary on evidence given at the trial, rather than first-hand reporting of new facts.

We intend to deal with these complaints as follows. The Ladd v Marshall objection is one of substance, which strictly speaking should be determined before we embark on the specific Taylor v Lawrence enquiry: see the approach of Butler-Sloss P in Uddin. But that objection, or an objection as close to it as to be indistinguishable in practical terms, forms an important part of the forthcoming appeal in Lloyds v Henderson. It would not be right to pre-empt that decision by what in the present application is only a threshold decision. We will therefore assume in the present application that the Ladd v Marshall test is satisfied. That is an assumption distinctly favourable to the applicants, which would not have been made, or at least would not have been made without substantial argument, had it not been for the order in which the various forms taken by the dispute between the names and Lloyds have come before the court.