Baker v Bowketts Cakes Ltd

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE WINN
Judgment Date16 March 1966
Judgment citation (vLex)[1966] EWCA Civ J0316-2
CourtCourt of Appeal
Date16 March 1966
George Victor Baker
Plaintiff Appellant
and
Bowketts Cakes Limited
Defendants Respondents

[1966] EWCA Civ J0316-2

Before

The Master of the Rolls

(Lord Denning)

Lord Justice Harman and

Lord Justice Winn

In The Supreme Court of Judicature

Court of Appeal

From Mr Justice Browne

MR M. LEWIS (instructed by Messrs Payne, Hicks Beach & Co., Agents for Messrs Weigall & Inch, Margate) appeared as Counsel for the Appellant.

MR MAXWELL TURNER (instructed by Messrs E.P. Rugg & Co.) appeared as Counsel for the Respondents.

THE MASTER OF THE ROLLS
1

Several years ago Mr Baker was employed as a baker with Bowketts Cakes Limited. at Broad stairs. In the course of his employment he contracted dermatitis or eczema. He left their employment in January 1962; so that any cause of action must have occurred before that time. He received industrial insurance on account of the dermatitis or eczema. In April 1962 he went to solicitors who wrote a letter on his behalf to Bowketts Cakes Limited., who put them in touch with the Insurance Company. Two meetings took place. The last meeting was in October 1962, at which the insurers pointed out that Mr Baker had no claim against his employers unless he could prove negligence. Bowketts Cakes Limited. heard nothing more of the case for three years, until a writ was served on them on the 10th September 1965 What we have to consider today is whether the writ was validly in force so as to be able to be properly served on that day.

2

Why did it take so long for Mr Baker's solicitors to issue the writ and serve it? It seems that in 1963 they applied for legal aid. It was a long time in coming. Eventually on 11th May 1964 they got leave to get Counsel's opinion and leave to issue a writ, but to go no further. They did not get leave to serve the writ. On the 28th May 1964 on behalf of Mr Baker, they issued a writ against Bowketts Cakes Limited. for damages for dermatitis contracted by him owing to negligence on the part of the defendants in the course of the plaintiff's employment between August 1958 and January 1962. The writ was not served because the Legal Aid Certificate did not include service. During the next year there were further discussions, medical examinations, references to Counsel, and so forth. But still the writ was not served. Eventually the time came in May 1965 when this writ was getting nearly twelve months old. Now a writ is only valid in the first instance for twelve months. So this writ was only valid from the 28th May, 1964, until the 28th May, 1965. Seeing that the twelve months were nearlyup, on the 24th May, 1965, Mr Baker's solicitors applied to the District Registrar to extend the validity of the writ for a further period. The District Registrar on the 25th May thought it was a difficult matter. He adjourned it for a time which would go beyond the twelve months. This roused Mr Baker's solicitors into/action. They felt they must serve the writ straight away if they could. They telephoned the local director of Bowketts Cakes Limited. and asked for the registered office of the Company. The message was that it was "at Berkeley House, 40 Berkeley Square, London, W.1". So on the 25th May they sent off the copy writ by post to that address. But unfortunately it was the wrong address. Berkeley House was not the registered office of this Company. Eventually the letter was returned "not known at Berkeley House". So it was not served within the twelve months.

3

In this situation the only hope for Mr Baker's solicitors was to get an extension of the validity of the writ. The District Registrar had adjourned the application. He eventually referred it to the Judge. It came before Mr Justice Browne as Vacation Judge in August 1965. He heard it ex parte and granted an extension for four months from 28th May, 1965. The writ was served on the 10th September, 1965.

4

The defendants entered a conditional appearance and applied to set aside the writ. Eventually in February 1966 Mr Justice Browne again heard the case He reversed his previous decision which he had made ex parte. After hearing argument he held that as a matter of discretion it was not right to extend the writ. It had expired on the 28th May, 1965. Not having been served within the twelve months, the action must be dismissed.

5

Now there is an appeal from his decision to this Court. It has been said that the difficulty arose because of the need to get legal aid at various stages. But I do not think that can affect our decision Under the Legal Aid Act of 1949,Section 1, sub-section (7)(b), the rights conferred upon a person receiving legal aid do not affect the principles upon which the discretion of this Court is exercised. This is only fair to the defendants. The defendants here did not know the plaintiff was legally aided. They did not know he had issued a writ. In considering whether to extend the writ, we must ignore legal aid.

6

The rules governing the extension of time are now contained in Order 6, rule 8(2), which says: "Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding twelve months at any one time, beginning with the day next following that on -which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any) as the Court may allow".

7

In seeing whether the discretion should be exercised under that rule, we must remember the Statute of Limitations. A plaintiff in an action for personal injuries has three years to issue his writ. If he issues it within those three years, he has another twelve months within which he can serve the writ. If he requires to extend it for a further time before service, he ought to show sufficient reason for an extension of time. That follows from what Lord Goddard said in the Batters by case, 1945, 1 King's Bench, particularly at p. 32, and from what Mr Justice Megaw said in Heaven v. Road and Rail Wagons Limited.. 1965, 2 Queen's Bench, p. 355. In particular, when the Statute of Limitations has run or is running in favour of a defendant, as here, the plaintiff who desires a further extension must show sufficient reason for an extension. These cases ought to be brought on for trial, as soon as...

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55 cases
  • Waddon v Whitecroft Scovell Ltd
    • United Kingdom
    • House of Lords
    • February 11, 1988
    ...J. had not felt obliged to follow them, he would or should have decided the case differently. The authorities concerned were Baker v. Bowketts Cakes Ltd. [1966] 1 W.L.R. 861 and Stevens v. Services Window and General Cleaning Co. Ltd. [1967] 1 Q.B. 359, in both of which extension of the val......
  • Excelby v Philpott and Philpott
    • United Kingdom
    • Court of Appeal (Civil Division)
    • February 21, 1969
    ...previously obtained. LORD JUSTICE WINN 9 I entirely agree, and would add for my own part only this, having regard to the case of Baker v. Bowketts Cakes Limited (reported in 1966 1 Weekly Law Reports at page 861), that I think that a clear distinction exists between the facts of that case a......
  • Wilkinson v Ancliff (B.L.T.) Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • May 23, 1986
    ...been issued, be a ground. These are in no way exceptional circumstances." 32 The Heaven principle was approved by this court in Baker v. Bowketts Cakes Ltd. [1966] 1 W.L.R. 861. The later decision of this court in Chappell v. Cooper [1980] 1 W.L.R. 958 shows that in an action for personal i......
  • Lim Ser Hock; New Ching Kee
    • Malaysia
    • High Court (Malaysia)
    • January 1, 1975
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