Easy v Universal Anchorage Company Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 01 May 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J0501-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 May 1974 |
[1974] EWCA Civ J0501-1
In The Supreme Court of Judicature
Court of Appeal
(Revised)
client said he would not take less than £3500. But Russell & Russell unfortunately did not pass that information on to the Ipswich solicitors until 23rd August 1973. By that time the crucial date, 17th August 1973, had passed and the writ had not been served. And the Ipswich solicitor, Mr. Scorer, had gone on holiday. He eventually got back on 12th September. He spoke to the insurers on the telephone. Then the truth appeared. The insurers said: "You did not serve the writ by 17th August 1973 as you ought to have done: you are out of time." So there it was. The four years had gone by and they had not served the writ. Mr. Scorer tried to remedy the position. He sought to renew the writ. He went to the District Registry. He made an affidavit setting, out the position, asking that the failure should be excused. The affidavit was not scourate. In paragraph 8 he said: "On my return from holiday on the 12th day of September I found awaiting the instructions to accept the offer." That was not correct. The instructions were not to accept less than £3500. But at all events the District Registrar did allow it to be renewed. The defendants appealed to the Judge. He allowed the appeal and held that the writ was not to be renewed. How there is an appeal to us.
Mrs. Puxon, Counsel for the plaintiff, admitted that the solicitors had made a mistake in not serving the writ, but she urged that it was excusable, and that the defendants have not suffered any prejudice. She relied on the negotiations for a settlement and urged that they afforded a sufficient reason for renewal. She referred us to the notes to Order 6, r. 8 of the white Book, in which it is said: "Thus, it is a sufficient reason that the defendant's insurers have stated that there is no need to serve the writ of summons pending negotiations, or" — and these are theimportant words — "there are negotiations for a settlement between the parties proceeding at the time of the application for renewal." The Prins Sernhard 1964 P. 117, is cited, out it does not support that proposition. I do not think that note is correct. The plaintiff's solicitors are under a duty to their client to serve the writ in time, even thought negotiations are in progress. This is quite unlike the cases when an section is struck out for must of prosecution. In these cases there is much discussion as to whether the delay has been such as to prejudice a fair trial. But that does not enter into the renewal of a writ. The only principle is that a writ is not to be renewed except for good reach. That appears form the cases starting with the judgment of Mr. Justice Megaw of Heaven v. Road and Rail Wagons Ltd. (1965) 2 .. 355: of this Court in Baker v. Sowketh's Cafe (1966) 1 61; Jones v. Jones (1970) 2 376. In that case Lord Justice Karaminski helpfully summarised all the authorities; and Lord Justice Karaminski went out of his way to say this:
"We were told in the course of argument that sometime writs are not served because, rightly or wrongly, it is thought that it might prejudice the possibilities of a settlement of a claim with the insurance company or underwriters concerned. I find this most difficult to accept as a valid reason. Negotiations for a settlement remain a matter of commercial judgment, and I find it very difficult to accept that the susceptibilities of the mere service of a writ on their assured."
That is right. Negotiations for a settlement do not afford any excuse for failing to serve a writ in time or to renew it.
I am afraid that the solicitors for the plaintiff made amistake: they knew perfectly well that they ought to have served the writ by 17th August 1973. They did not do it. It was an unfortunate oversight by the Bolton solicitors — who did not write promptly to Ipswich — and by the Ipswich solicitors themselves. They overlooked the necessity of serving the writ by 17th August 1973. It is true that negotiations were in progress for a settlement; but that is not a sufficient reason for not serving the writ.
I would add that this does not mean that Mr. Easy ill suffer. He has a remedy against the solicitors. I think the Judge was right not to renew the writ. I would dismiss the appeal.
LORD JUSTICE ORR: I...
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