Daroga and Another v Wells and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE STUART-SMITH,ORDER |
| Judgment Date | 11 May 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0511-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 May 1994 |
[1994] EWCA Civ J0511-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Order of Mr. Greame Hamilton Sitting as a Deputy Judge)
Before: Lord Justice Russell Lord Justice Stuart-Smith
MR. R. SHERMAN (instructed by Messrs. Wellers, Bromley, Kent BR1 3NF) appeared on behalf of the Applicant.
MISS E. OVEY (instructed by Messrs. Anthony Gold, London SE1 1TY) appeared on behalf of the Respondent.
( )
Wednesday 11th May 1994
I will ask Lord Justice Stuart-Smith to give the first judgment.
This is an appeal from a judgment of Mr. Graeme Hamilton QC, sitting as a Deputy High Court Judge, given on 19th November 1993, in which he allowed the plaintiff's appeal from a decision of Master Eyre, who had struck out the writ and statement of claim on the ground that it was barred by a time limit contained in the contract. The Judge gave the defendants leave to appeal that decision. He also, at the same time, refused the plaintiff's application for leave to amend the statement of claim. He did not give leave to appeal that decision, but we have granted leave.
The brief facts of the case are these. By an agreement dated 5th June 1990 the defendants sold their shares in a company called Whitford Engineering Products Ltd. to the plaintiffs. In addition to the sale agreement there was a deed of indemnity. The plaintiffs and the defendants were represented by separate solicitors, who dealt with the transaction on their behalf. There were a number of warranties contained, or referred to, in the sale agreement. The operative provision with which we are concerned, and which contained the time limit, is clause 3(11) of the Agreement, which is in these terms:
"No claim shall be brought by the Purchaser or the Company or any person claiming under either of them in respect of any breach of Warranties unless notice in writing in such claim (specifying in reasonable detail the event, matter or default which gives rise to the claim, the breach that results from the amount claimed) has been given to the Vendors not later than the expiration of a period of 24 months from Completion. Any such claim shall be deemed (if it has not been previously satisfied settled or withdrawn) to have been withdrawn at the expiration of six months after the expiration of such period of 24 months unless proceedings in respect of it have been commenced by being issued and served on the Vendors."
By a letter of 29th May 1992 the defendants gave notice of their claim for breach of warranties and under the deed of indemnity. The plaintiffs issued a writ on 4th December 1992, endorsed with a statement of claim, by which they claimed damages for breach of warranty and a declaration in respect of the defendant's liability to indemnify the plaintiffs under the deed of indemnity. The writ and statement of claim were sent by first class post on 4th December 1992. The defendant's application to strike out was brought under the provisions of Ord. 18 r. 19 and the inherent jurisdiction of the court, and two points were taken. The first was that on the true construction of Clause 3(11) the date for service of any proceedings expired on 4th December. In other words, the date of the completion of the contract was to be included in the time limit of 24 months, and not excluded. If that was right, then it was plain that the proceedings had been served out of time because they could not have been served on 4th December. Alternatively, if that submission was wrong, and service had to be by midnight on 5th December, then Mr. Sherman submitted that the provisions of Ord. 10 r. 1(3)(a), by which the writ was deemed to have been served on 11th December 1992, meant that the proceedings must have been deemed to have been withdrawn before midnight on 5th December.
In the course of the hearing before the Master, it was conceded by the plaintiffs that the claim for indemnity under the deed of indemnity was out of time, and the Master struck that claim out. There was no appeal on that point because a different limitation period related to the deed of indemnity. However, the Master also struck out the claim on the breach of warranty, acceding to the defendant's submissions which I have indicated.
The plaintiff appealed to the Judge and the Judge allowed the plaintiff's appeal. He said that it was arguable that the period expired on midnight of 5th December, so that the defendant's first submission was arguably incorrect. In relation to the second submission, he held that it could not be struck out because it should be open to the plaintiffs to adduce evidence that the proceedings had been served before midnight on 5th December. It is against that decision that the defendants appeal. The first question therefore is: was the date of the completion of the contract inclusive or exclusive of the period of computation? If the date was exclusive, so that the period expired at midnight on 5th December, is the effect of Ord. 10 r. 3(1)(a) such that the plaintiffs are, in any event, out of time?
The Judge had before him an application for leave to amend the statement of claim by adding an alternative claim that there was breach by misrepresentation. He refused to permit the plaintiffs to amend, but on the defendant's undertaking not to apply to strike out any fresh proceedings, he said that they should make the claim in fresh proceedings.
The defendants appeal the refusal of the Judge to determine that the claim for breach of warranties was also covered by clause 3(11). They say that he should have held that it was. As I have indicated, the plaintiffs cross-appeal on the refusal to give leave to amend.
The general rule in the computation of time is that the day on which the document is executed is not to be included. That is to be found in the statement of principle in the speech of Lord Diplock in Dodds v Walker [1981] 1 WLR 1027, 1029. Lord Diplock said:
"My Lords, reference to a "month" in a statute is to be understood as a calender month. The Interpretation Act 1889 says so. It is also clear under a rule that has been consistently applied by the courts since Lester v Garland [1808] 15 Ves.Jun. 248, that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.
The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month."
In some cases the language of the contract or document may make it clear that the date of the execution of the document is to be included. Such a case was English v Cliff [1914] 2 Ch 376, a decision of Warrington J. But in my judgment, that case depends on the specific language of the deed in question, and it is of no assistance here. It is plain on the language of that deed that the day of execution was to be included in the time...
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