Was there ever a snail in the bottle?
One of the persistent rumours about Donoghue v Stevenson is that there was never a snail in the ginger beer bottle: could it have been some yeast left over from the brewing process?
An oft-repeated assertion is that May Donoghue’s claim was dismissed at trial following the House of Lords decision. Statements to this effect by English appeal judges and resulting correspondence between Lords Macmillan, Atkin and David Stevenson’s counsel, later Lord Normand, are referred to in ‘Mrs Donoghue's Journey’ (9th to 11th last paragraphs and footnotes 26 to 28).
Diligent research into the proceedings recorded in The Court of Session has revealed:
- July 19, 1932. Action referred back for trial to Lord Moncrieff whose pretrial decision had been upheld two months earlier by the House of Lords.
- November 4, 1932. Trial date set by Lord Moncrieff as January 10, 1933.
- December 22, 1932. Lord Moncrieff adjourns the trial generally on account of the death of David Stevenson.
- November 6, 1934. Lord Moncrieff: (a) recognizes Stevenson’s executors as acting in his place, (b) by reason of “the action having been settled extrajudicially, assoilizes the defenders from the conclusion of the Summons and discerns”, and (c) finds “no expenses due to or by either party.”
The effect of the last proceedings was to bring the claim to an end by what could be described as dismissal by consent without costs, following settlement.
So we now have contemporary written evidence, signed by the trial judge, showing:
(a) That May Donoghue’s action did not go to trial but was instead dismissed as part of a settlement, two years after the House of Lords decision.
(b) That Lord Justice MacKinnon was plainly in error in stating in a speech in 1942 that there had been a trial at which the court had found that there was no snail in the bottle, and Lord Justice Jenkins equally so in repeating this statement in the Court of Appeal as part of his decision in Adler v Dickson [1954] W.L.R. 1482
(c) That Lord Normand cannot have been aware of items 2, 3 and 4 above when he said in his letter to Lord MacMillan and Lord Atkin, following Lord Justice MacKinnon’s 1942 speech, that there were no further proceedings following the decision of the House of Lords and that Stevenson’s estate had never been added.
We are able to produce extracts from the court record, signed by the judge of first instance, which alone plainly show that the case progressed to what could be described (in some jurisdictions) as dismissal by consent without costs, following settlement
The question of whether there was a snail in the ginger beer bottle was never proven or disproven. The case was decided as a question of relevancy taking the pursuer’s averments pro veritate.
Images: Crown copyright. National Records of Scotland, CS252/2299 and reproduced by permission.
