Fick & Fick Ltd v Assimakis
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 23 July 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J0723-2 |
| Date | 23 July 1958 |
| Court | Court of Appeal |
[1958] EWCA Civ J0723-2
In The Supreme Court of Judicature
Court of Appeal
The Master of The Rolls (Lord Evershed) and
Lord. Justice Ormerod
Mr. MARK LITTHAN (instructed by Messrs. Lucien Fior) appeared on behalf of the Appellant Defendant.
Mr. HARRY LESTER (instructed by fir. Hall Brydon) appeared on behalf of the Respondent Plaintiffs.
: We need not trouble you, Hr. Lester. The first point taken by the Appellant Is unusual, but it is, of course, a point which she is perfectly entitled to take. The action is one brought to recover a sum of money - not very great - £112. 8s,0d. - for two articles of furniture. As I have understood from Mr. Llttman, the original writ, bearing the number end figures; 1958 F. No. 252, was issued by the Plaintiffs by say of a specially endorsed writ and complied with all the requirements of such a writ. Particularly, it bore upon the back of it the legend statement of Claim, "followed by Particulars", and it was signed by the solicitor for the Plaintiffs. The writ was served upon the Defendant, and again I understand the facts from Mr. Llttman to be that it was served in the ordinary way by handing to her a duplicate or copy of what purported to be a duplicate or copy of the writ. 1 dare say that the original writ was In the possession of whoever served her and available for her notice if she wanted to see it. The Defendant ignored the proceedings at first, a id the Plaintiffs obtained a judgment in default of appearance and defense. At that stage the Defendant; wisely took expert advice and consulted a solicitor. The judgment was get aside; but: it was obvious that she was in considerable difficulty In applying to have the Judgment set aside unless she was prepared to say she was appearing to the writ. So the order made by the master on the 9th April was in this form: "It is ordered that the Judgment entered in this action and obtained in default of Appearance on the date stated - "and all subsequent proceedings in this action" which included, I think I am right in saying, proceedings by way of execution - "be set aside". Then there follows: "Appearance to stand as of today's date." An appeal from that Order was unsuccessful. It therefore is made plain that from the 9th April 1958 Mrs. Assimakis must be taken to have duly appeared to the writ, which, I repeat, was Issued bearing the date,
number and letters: 1958 F, No, 252. The Plaintiffs, having been somewhat checked upon their first advance, then proceeded by way of -application for summary judgment under Order XIV, and the result of that proceeding has been the Order now under appeal by Hr. Justice Olyn-Jones dated the 15th May of this year. 'That Order provides that the Plaintiffs should be entitled to recover judgment unless the Defendant pays the whole sum stated on the writ, £112. 8a. Cd. Into Court within 7 days. I understood. I hope rightly, from Mr. Lithman that in that event, that is to say, that the sum is paid into Court, the action will then be transferred to a County Court for trial.
The first point which Mr. Lithman has argued for Mrs. Aaslmakls here is this – and if it is unusual and purely Technical, it loses none of its Interest for that: he has drawn attention to the rule, particularly the opening language of Order XIV: "Where the Defendant appears to a writ of summons specially endorsed with a statement of claim under Order 3 rule 6"; and he says that in order to sustain Fir. Justice Glyn-Jones' Order the Plaintiffs must show that the Defendant here has appeared to a writ specially endorsed with a statement of claim. That carries you back to the other relevant Orders: Order 3, rule 6; particularly Order 19, rule 4; and Order 2, rule 1. I do not propose to read them all it suffices to say that if an endorsement is to be a statement of claim, then it must possess certain characteristics. One la that there should be at the head of the Particulars or statement the words...
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...Tacit per Se,” the signature by the clerk to the plaintiff's solicitor is sufficient ( France v. Dutton, [1891] 2 Q.B. 208). See Fick & Fick, Ltd. v. Assimakis, [1958] 1 W.L.R. 1006, C.A. (ii) Olafsson v. Gissurarson, [2006] WHC 3250 (Comm), The Times, December 22, 2006 (McKay, J.), it wa......
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...for a stay under the Arbitration Act.” 45 Interesting authorities as Stern v. Friedman [1953] 2 All E.R. 565 and Fisk v. Assimakis [1958] 3 All E.R. 182 pertaining to when and how an appearance can be entered after a judgment were cited. Also there were submissions on the construction of Se......