Braniff v Holland & Hannen and Cubitts (Southern) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE WIDGERY |
| Judgment Date | 11 June 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0611-2 |
| Docket Number | 1966 B. No. 5296 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 June 1969 |
[1969] EWCA Civ J0611-2
Lord Justice Davies
Lord Justice Widgery and
Lord Justice Cross
In The Supreme Court of Judicature
Court of Appeal
(On appeal from the Queen's Bench Division - Mr. Justice Chapman)
MR. P. ARCHER (instructed by Messrs. Berger Oliver & Co.) appeared on behalf of the Plaintiff.
MR. PETER MACNAIR (instructed by Messrs. Barlow Lyde & Gilbert) appeared on behalf of the First Defendants.
MR. RALPH GIBSON. Q.C., and MR. W. BARNETT (instructed by Messrs. Geoffrey Coombs & Co., Agents for Messrs. Hodgson, Fox & Co., Nottingham) appeared on behalf of the Second Defendants.
( AS REVISED)
I will ask Lord Justice Widgery to deliver the first judgment.
This is an appeal from an order of Up. Justice Chapman made on the 4th May of this year in these circumstances. On the 4th October, 1965, the Plaintiff when working as an employee of the First Defendants, Holland & Hannen and Cubitts Limited was injured at work by the fall of a hoist. The details of the accident do not concern us and we have not gone in to them. On the 25th October, 1966, the Plaintiff issued a writ against the First Defendants claiming damages for personal injuries and alleging that the First Defendants in one way or another were responsible for a defect in the hoist which gave rise to the accident. An appearance was entered. This was followed by a defence, the proceedings being carried on with commendable promptitude on both sides; so much so that a hearing for the matter was fixed for the 25th may, 1968.
However, very much at the eleventh hour, namely, earlier in the month of May, 1968, the First Defendants decided, no doubt on expert advice, that the true fault giving rise to this accident lay in the Second Defendants, Barfords of Belton Limited, who had either made or maintained the hoist or both - I am not sure which, and it matters not. Accordingly, early in may, 1968, the Defendants applied for leave to issue a third party notice against the Second Defendants claiming, as I understand it, an indemnity from them against any damages which might be awarded to the Plaintiff. The application for leave to issue the third party notice was refused by the Master, because of the lateness of the hour at which the application was made. It was intended by the Defendants to take the matter to the Judge on appeal, but apparently an arrangement was come to before the appeal was heard betweenthe Plaintiff and the First Defendants and the substance of that arrangement was that the Plaintiff would himself join the present Second Defendants as Defendants in the proceedings.
Accordingly, on the 24th July, 1968, an application was made to Master Ritchie for leave to amend the writ and the statement of claim for the purpose of bringing in the Second Defendants. The authority for this amendment was duly obtained from the Master on that date.
It was at this point that things began to go wrong. The application for the amendment was made under Order 15 Rule 6. Sub-rule 2 of that Rule provides that:
"At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or, on application.…. (b) order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon be added as a party."
The order of Master Ritchie, as I understand it, was made under the authority of that Rule. But where such an order is made certain procedural consequences follow under Order 15, Rule 8. 3y Sub-rule 1 of that Rule,
"Where an order is made under Rule 6 the writ by which the action in question was begun must be amended accordingly and must be indorsed with (a) a reference to the order in pursuance of which the amendment is made, and (b) the date on which the amendment is made."
Such amendment must be made within such period as may be specified in the order or if no period is so specified within fourteen days after the making of the order. Master Ritchiehaving specified no other date the requirement upon the Plaintiff was to carry out the amendment involving the sealing of the writ as amended within fourteen days of the 24th July, This step was overlooked.
Before I go on to deal with the succeeding history I must refer again to Order 15, Rule 8, Sub-rule 4 which provides that:
"Where by an order under Rule 6 or 7 a person is to be added as a party or is to be made a party in substitution for some other party, that person shall not become a party until (a) where an order is made under Rule 6, the writ has been amended in relation to him under this Rule and (if he is a Defendant) has been served on him."
I stress the phrase, which is important in this case, that until those procedural steps have been taken the new party to be joined shall, in the words of the Rule, "not become a party."
What happened, by an unfortunate oversight, was that the Plaintiff produced an amended statement of claim pursuant to Master Ritchie's order and on the 16th August he sent to the Second Defendants a copy of that statement of claim duly amended, with a copy of the writ not amended, he having not taken the appropriate steps to amend the writ. The receipt of these documents was acknowledged and the matter was passed through the Second Defendants' insurers to the Second Defendants' solicitors and on the 18th October, 1968, the Second Defendants' solicitors wrote to point out that the writ had not been amended and that the Rules had therefore not been complied with.
I pause again here to observe what will at once be obvious, that by 21st October, 1968, the period of limitationin respect of an action for personal injuries occurring on the 4th. October, 1965, had already expired, that period being one of three years expiring on the 4th October, 1968.
The Plaintiff having been advised of this omission on his part went back to Master Ritchie ex parte, as in my judgment he was bound to do if he was to make the application at all, and asked the Master to extend his time under the terms of Order 15, Rule 6, so that he could make the formal amendment of the writ that day, which was the 22nd or 23rd October, 1968. Master Ritchie gave that permission under the general power to extend periods prescribed by the Rules, extending the period of fourteen days prescribed by this Rule to a period ending upon the day of the hearing before him. The Plaintiff then duly amended the writ and in due course served upon the Second Defendants a copy of the writ as amended.
I can pass over the next steps quite briefly, because little turns upon them. The next important reaction of the Second Defendants was that on the 15th November, 1966, they entered a conditional appearance and on the 4th December, 1968, they applied under Order 12, Rule 8, for the writ and service of the writ to be set aside. They...
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