As to the second action, the court ordered that the appeal from Waller J. should be "for the most part dismissed." Yet the court went on to order that damages in respect of hulls 3-6 should be assessed under clause 5.05, as in the case of the first action. Longmore J., in his admirable judgment, found this hard to follow. For if it be right that the keel laying instalments on hulls 3-6 never fell due, as the Court of Appeal thought, there could not have been any default in payment of those instalments within the meaning of clause 5.05(1), in which case the contractual machinery for assessing damages under clause 5.05 never began to turn. Longmore J. describes this as a "wrinkle." It is more like a mantrap, and one into which the plaintiffs have deservedly fallen by seeking to recover summary judgment in respect of the keel laying instalments on hulls 3-6 when they should have been content to make an ordinary claim for damages for repudiation of those contracts.

    Is it now possible for the plaintiffs to extricate themselves from the mantrap? The difficulty here is the judgment of Colman J. As already mentioned, Colman J. held that it is too late for the plaintiffs to amend their pleadings. By serving keel laying notices in respect of hulls 3-6, and by pursuing their claim for the keel laying instalments before Waller J. and the Court of Appeal, they have elected to keep those contracts alive. They cannot revert to the position as it was before they served the keel laying notices. Having affirmed the contracts, the plaintiffs cannot now rely on the buyers' anterior repudiation. Accordingly Colman J. refused leave to amend.

    I have much sympathy with Colman J.'s approach. Indeed it might be said that he had no real alternative in the light of the Court of Appeal's order (by which he was, of course, bound) that damages were to be assessed in accordance with clause 5.05. It would be unusual to allow an amendment so as to allege a new basis of claim after final judgment on liability.

    But the position is now changed. If the Court of Appeal's order is set aside, and the judgment of Waller J. giving unconditional leave to defend is restored, save as to the point which I would decide now in favour of the buyers, the question of affirmation can be approached afresh.

    I had reached this point in my judgment, or a little further, when I had the advantage of reading in advance the concluding paragraphs of my noble and learned friend Lord Goff of Chieveley's speech as to the disposal of these appeals. The solution which he proposes attracts me as the best--and perhaps the only--way of getting these two actions back on the rails. I believe it to be consistent with the views which I have expressed. I agree so entirely with what he says that it would be superfluous for me to add anything.

LORD HOFFMANN

My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Goff of Chieveley. For the reasons he gives I, too, agree the proposals he makes for the disposal of these appeals.

LORD HOPE OF CRAIGHEAD

My Lords,

    I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Goff of Chieveley. I agree with it, and for the reasons which he has given I would dispose of the appeals in both actions in the same way.

    I would therefore make the same orders in regard to the yard's right to recover the keel-laying instalments as those which he has proposed in relation to those made by the Court of Appeal. I would also, for the same reasons as he has given, set aside that part of the order of the Court of Appeal which dealt with the assessment of the yard's claims for damages together with the orders which were made thereafter by both Longmore J. and Coleman J., so that the two actions may now return to the Commercial Court to resume their ordinary course in regard to these claims.

LORD HUTTON

My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Goff of Chieveley. I agree with it, and for the reasons he gives I, too, would dispose of these appeals in the way which he proposes.