“…The question in reality is: what amounts to a proper opportunity? This court considered that question in Markem Corp v Zipher Ltd [2005] EWCA Civ 267, [2005] RPC 31. The court referred to the decision of the House of Lords in Browne v Dunn…”
“…The footnote to that passage refers to Browne v Dunn (1894) 6 R 67, Markem Corp & anor v Zipher Ltd & ors [2005] EWCA Civ 267 (at para 50-61) and Allied Pastoral Holdings v Federal Commissioner of Taxation (1983) 44 ALR 607, to all of which we have been taken.…”
“…As made clear by cases from Browne v Dunn (1894) 6 R. 67 HL to Markem v Zipher [2005] EWCA Civ 267; [2005] R.P.C. 31, the rule is an important one. However, it is not an inflexible one. Procedural rules such as this are the servants of justice and not the ot…”