APPEAL from Birkett J.
On October 20, 1941, Albert Victor Battersby was killed by an explosion at the works of the first defendants. The plaintiffs, his widow and children, took proceedings under the Fatal Accidents Act, 1846. On October 19, 1942, a writ was issued, but it was not served within the twelve months required by R. S. C., Or. 8, r. 1F1 On January 18, and May 22, 1944, applications for renewal of the writ were made to a master who refused to grant leave. On May 23, 1944, the plaintiffs appealed to Stable J. who granted leave to renew the writ for six months from October 18, 1943, and for a further six months from the expiration of that period, this order being made subject to any application to set aside the writ. In June, 1944, the writ was served on the defendants who entered a conditional appearance. On June 22, 1944, an application to set aside the writ was made to Master Baker, who ordered that the writ and the service thereof be set aside on the ground that at the time of the renewal of the writ the plaintiffs' cause of action under the Fatal Accidents Act, 1846, had expired. On June 27, 1944, the plaintiffs appealed to Birkett J., who allowed the appeal and directed that the order of Master Baker should be rescinded and that the order of Stable J. granting leave to renew the writ should stand. From this order of Birkett J. some of the defendants appealed.
Valentine Holmes for the first three defendants who appealed. The effect of the order of Birkett J. renewing the writ against these three defendants was to deprive them of their defence that the action against them was barred by s. 3 of the Fatal Accidents Act, 1846, which provides that an action under the Act must be commenced within twelve calendar months after the death caused by the wrongful act, neglect or default. Where an original writ of summons has been in force for more than twelve months without being renewed it is no longer in force and is a nullity: R. S. C., Or. 8, r. 1; but by virtue of what is now Or. 64, r. 7, there is normally power to renew it after the expiration of that period of twelve months: In re Jones, Eyre v. CoxF2. The court, however, will never exercise this discretion when its exercise will defeat the vested rights of a defendant to plead a statute of limitations: Doyle v. KaufmanF3. The Court of Appeal in that case (Bramwell, Brett and Cotton L.JJ.) intimated that the principle laid down by the Divisional Court (Cockburn C.J. and Lush J.) was right, though they dismissed the application on another groundF4. In Smalpage v. TongeF5 the court gave leave for the issue of a concurrent writ for service out of the jurisdiction notwithstanding that the enlargement of time for issuing a concurrent writ might affect the operation of the Statute of Limitations, but in that case the original writ issued for service within the jurisdiction had been renewed from time to time under Or. 8, r. 1, and so was always effective. Cotton L.J., referring to Doyle v. KaufmanF6, saidF7: “There the right of action was gone …. Here the right of action still continues, and we are only asked to make the action effectual by ordering service out of the jurisdiction.” In Hewett v. BarrF8, Doyle v. KaufmanF6 was followed, Lopes L.J. saying: “In my experience, the practice as laid down in that case has been followed ever since.”F9. It is true that Kay L.J. said that he was disposed to think that Or. 64, r. 7, might be construed to give the court power to grant an application to renew the writ after its twelve months' currency, although the period of limitation had in the meantime expired, where it was proved that every effort had been made to serve the writ and by accident or mistake no application for renewal had been made within the yearF10, but it is plain that Kay L.J. would not have affirmed the order of Birkett J. in this case. If a statute of limitations would be defeated, the court will not allow a person to be added as plaintiff: Mabro v. Eagle Star and British Dominions Insurance Co., Ld.F11; or a pleading to be amended by setting up fresh claims then barred: Weldon v. NealF12; Marshall v. London Passenger Transport BoardF13. All authority up to the present year shows that the court has no discretion to renew a writ after its currency of twelve months when the effect will be to deprive a defendant of his defence under a statute of limitations, or, alternatively, that, if there be such a discretion, it will only be exercised in exceptional circumstances, such as where there has been accident or mistake or perhaps where the default has been induced by the conduct of the defendant. In Holman v. George Elliot & Co., Ld.F14 the writ under the Fatal Accidents Act, 1846, was issued on October 7, 1942, two days before the expiration of the twelve months from the date of the accident. This writ was renewed by Stable J. under Or. 64, r. 7, after its twelve months' currency had elapsed and his order was upheld by the Court of Appeal, MacKinnon L.J. expressing the opinion that Stable J.'s order had not deprived the defendants of an accrued right of defence under the Fatal Accidents Act, 1846. It is submitted that this is not so, since the writ became a nullity twelve months after October 7, 1942, and, therefore, the defendants' remedy was barred under s. 3 of the Fatal Accidents Act, 1846. If the writ ceases to be in force the position is the same as if it had never been issued. If that was not so there would be no reason for the words in Or. 8, r. 1: “a writ … so renewed shall remain in force and be available to prevent the operation of any statute whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original writ of summons.” The decision in Holman v. George Elliot & Co., Ld.F15 is in conflict with all earlier authority and with other decisions of the Court of Appeal.
Scott Cairns and Mitchison for other defendants adopted the arguments of Holmes.
Sandlands K.C. and Geoffrey Howard for the plaintiffs. By the express terms of Or. 64, r. 7, Birkett J. had a complete discretion to enlarge the time for renewing this writ. The short judgment in Doyle v. KaufmanF16 can mean no more than that the court ought not to have exercised its discretion to enlarge the time for renewal of the writ in that case. In Monk v. Redwing Aircraft Co., Ld., Lord Greene M.R. saidF17:“It is right, perhaps, to make...
