Bowler v John Mowlam & Company

JurisdictionEngland & Wales
Judgment Date15 November 1954
Judgment citation (vLex)[1954] EWCA Civ J1115-1
CourtCourt of Appeal
Date15 November 1954

[1954] EWCA Civ J1115-1

In the Supreme Court of Judicature

Court of Appeal


Lord Justice Denning

Lord Justice Hodson

Lord Justice Romer

John Mowlem ' Company Limited

MR. N.R. FOX-ANDREWS, Q.C. And MR RONALD HOPKINS (instructed by Mr J. H. Fellowes) appeared on behalf of the Appellant (Plaintiff).

MR MARVEN EVERETT. Q.C. and MR NORMAN RICHARDS (instructed by Messrs E. P. Rugg ' Co. appeared on behalf of the Respondents (Defendants).


On the 12th February, 1951, Mr Thomas Henry Bowler died as the result of an accident in the River Thames. On the 19th October, 1951, his widow, Mrs Winifred Bowler, brought an action against the employers, John Mowlam ' Company Limited. A Statement of Claim was delivered alleging negligence and saying that the action was brought on behalf of the widow of the deceased, aid a son aged 14 and a daughter aged 7. A Defence was put in denying negligence, and the action was tried before Mr Justice Ormerod with a Jury on the 23rd, 24th and 25th November, 1953. The Jury found the employers were liable andthe damages were agreed between both sides at £3.375. Then a point was taken (which bad been adumbrated at the beginning of the trial) that the whole action was misconceived, and that the Writ was a nullity. Mr Justice Ormerod felt bound to accede to that argument, and in spite of the Jury's verdict he thought he could do nothing else than enter judgment for the Defendants. From that there is an appeal to this Court.


The reason why the Writ is said to be a nullity is very technical. It is said that it was issued by Mrs Bowler as administratrix and she was not in fact administratrix at the time. The proceedings were as follows: The title of the action who between Winifred Bowler (administratrix of Thomas Henry Bowler deceased) Plaintiff, and John Mowlam ' Co. Ltd., Defendants. Then on the indorsement of the Writ it said: "The Plaintiffs claim is for damages for negligence and/or breach of statutory duty under the Fatal Accidents Acts 1846/1908 and under the Law Reform (Miscellaneous Provisions) Act, 1934, The Statement of Claim which was delivered on the same day with the Writ said in the first paragraph: "The Plaintiff is the Administratrix and lawful relict of Thomas' Henry Bowler deceased, hereinafter called the deceased, and brings this action for the benefit of the deceased's estate under the provisions of the Law Reform (Miscellaneous Provisions) Act, 1934, and for the benefit of his dependants under the Fatal Accidents Acts 1846/1908. Then she gave Particulars of the persons on whose behalf the action was brought, namely, the widow, the son and the daughter, and the prayer was: "And the Plaintiff claims: Under the Law Reform (Miscellaneous Provisions) Act 1934, damages: Under the Fatal Accidents Acts 1846/1908, damages".


The fact was that at the date when the writ was issued Mrs Bowler was not the administratrix of the estate of Thomas Henry Bowler. No letters of administration had been taken out at that time: they were not in fact taken out until the 10th November, 1952. It is said that on that account the Writ was anullity and that all the proceedings are bad. It is said to be incurably bad because it cannot be amended, and a new Writ would be of no avail in regard to the Fatal Accidents Acts because proceedings under those Acts had at all material times to be brought within one year of the matters complained of. The one year has long since past, though I am glad that for future cases the period has now been extended to three years.


The law on this subject as laid down by several decisions of this Court is this: If a plaintiff brings an action in a representative capacity as administratrix, then that action is a nullity if she was not at that date by law administratrix with a proper grant. Even if she obtains a grant within a week, a month or a year afterwards it does not relate back. The Writ is a nullity from the beginning. That has been established by the decisions of this Court in Ingall v. Morgan (1944 King's Bench, page 160); Hilton v. Suttom Steam Laundry (1946 King's Bench, page 65); Burns v. Campbel (1952, 1 King's Bench, page 15), and Finnegan v. Cementation Co. Ltd. (1953, 1 Queen's Bench, page 688). The whole question in this case is: was this action brought by Mrs Bowler in a representative capacity as administratrix of her husband? In the title of the Writ, which I have read, she is described as administratrix, but, in my opinion, that does not denote a representative capacity. That is simply a description of her status it was believed to be. The indorsement on the Writ is the cricial matter. Under Order 3, Rule 4, of the Rules of the Supreme Court the indorsement is the place where representative capacity must be shown. That Rule says: "If the plaintiff sues in a representative capacity the indorsement shall show in what capacity the Plaintiff sues". In this indorsement it is nowhere said that the plaintiff claims as administratrix. In the previous cases in this Court which I have mentioned the indorsement clearly said that the...

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