Divisional Court Cases
| DOI | 10.1177/002201834801200103 |
| Published date | 01 January 1948 |
| Date | 01 January 1948 |
| Subject Matter | Article |
Divisional Court Cases
CASE STATED
Moore v. Hewitt
By
Rwe
52 of
the
Summary Jurisdiction Rules
1915:-
"The
case shall be
stated
within
three
calendar
months
after
the
date
of
the
application (to
state
a case)
and
after
the
recognizance shall
have
been entered
into".
If
for some reason a case is
not
stated
within
three
months
after
application to
the
Court of
Summary
Juris-
diction to
state
a case, is an appellant
to
be penalised
by
the
Divisional Court being unable
to
hear
his appeal,
regardless of whether
the
delay in
stating
the
case was
due
to
any
act
or omission on
the
part
of
the
appellant?
This
was
the
question which aDivisional Court (Lord Goddard,
C.J., Macnaghten
and
Lynsky,
JJ.)
had
to consider in
the
above case (1947,
K.B.
831) when a preliminary objection
was
taken
that
more
than
three
months
had
elapsed between
the
application
and
the
statement
of
the
case. The question
was
not
an easy one as recently in Gregory v. Cattle (1943,
K.B.
412) aDivisional Court
had
held
that
the
rule was
imperative
and
that
the
Court
had
no jurisdiction
to
hear
a case
stated
out
of time, whereas a
contrary
ruling
had
been given in 1894
in
Hughes v. Wavertree Local Board (10
T.L.R.
357) when
the
Court
had
held
that
the
rule was
directory only,
if
the
delay was
not
due to
the
fault of
the
appellant. This earlier ruling is certainly more consonant
with justice as
it
is
very
hard
if,
for example, awrongful
conviction
cannot
be set aside because
the
justices respon-
sible for
the
conviction
by
their delay in assisting
the
appellant
to
appeal from
their
decision deprive him of his
remedy.
Fortunately
the
Court was able to find
that
it
could follow
its
earlier decision with
the
result
that
the
pre-
liminary objection did
not
prevail
and
the
appeal (which was
not
of a criminal nature) was thereafter
heard
on its merits.
37
38
THE
JOURNAL
OF
CRIMINAL LAW
The judgment of
the
Court on this point was delivered
by
I.ord Goddard, C.].
The Lord Chief Justice pointed
out
that
this
matter
had
first been considered in Hughes v. Wavertree Local
Board (supra)
and
that
both
Cave
J.
and
Wright
J.
had
held
that
the
exactly similar words of rule 18 of
the
Sum-
mary
Jurisdiction Rules, 1886, were directory only
and
that
it
was
not
afatal objection
that
justices
had
not
stated
a case within three months.
That
decision
had
been
followed in Lane v. Rendall (1899 2 Q.B. 673) where on
the
objection being taken,
the
Court without calling on
the
other
side,
at
once intimated
that
the
decision in Hughes
v. Wavertree Local Board precluded such an argument. Lord
Goddard C.J. remarked
that
confusion had been introduced
by
the
fact
that
in 1943 when Gregoryv. Cattle (supra) came
before
the
Court
and
such an objection was taken, counsel
for
the
appellant
had
not
been prepared with these author-
ities which were
not
cited
to
the
Court. The only answer
then
put
forward
to
such objection
had
been
that
the
case
had
been
stated
under
the
Summary Jurisdiction Act, 1857,
as well as under
the
Summary Jurisdiction Act, 1879,
and
that
under
the
earlier Act there was no limitation of time
within which a case
had
to
be stated,
but
the
Court
had
held
that
the
two Acts
had
to be read together
and
that
the
Summary Jurisdiction Ru1es, 1915, were equally applicable
to
both
Acts.
In
the
above circumstances
it
appeared to
the
Court
that that
decision
had
been given per incuriam.
The Court of Appeal in Young v. Bristol Aeroplane Co.
(1944
K.B.
718)
had
laid down
that
acourt is
not
bound
by
aprevious decision given per incuriam.
He
should be
sorry to hold
that
where delay was due to
the
action of
the
justices
and
not
due to either
party,
such delay constituted
afatal objection.
It
might well be
that
the
maxim was
applicable actus legis nulli facit inJ"uriam.--it was an act of
the
Law which could
not
take
away anyone's right.
In
the
present case there was nothing before
the
Court
to show why
the
justices did
not
state
the
case within
three months. The Court only knew
that
they
had
not
stated
the
case for five months.
If
the
appellant
by
taking
frivolous objections to
the
case
and
continually sending
it
back with arequest for re-statement
had
contributed to
the
delay, it might well be
that
the
respondent cou1dproperly
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