Finnegan v Cementation Company Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE SINGLETON,LORD JUSTICE JENKINS,LORD JUSTICE MORRIS
Judgment Date15 Apr 1953
Judgment citation (vLex)[1953] EWCA Civ J0415-2

[1953] EWCA Civ J0415-2

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Singleton

Lord Justice Jenkins

and

Lord Justice Morris

Finnegan
and
Cementation Company Limited

MR F. W. BENEY, Q.C. and MR A. RANKIN (instructed by Messrs R. I. Lewis & Company) appeared as Counsel on behalf of the Appellant (Plaintiff).

MR STEPHEN CHAPMAN (instructed by Messrs Goldingham, Wellington & Company) appeared as Counsel on behalf of the Respondents (Defendants).

LORD JUSTICE SINGLETON
1

This is an appeal from an Order in Chambers of Mr Justice Parker, who dismissed an appeal from an Order of Master Baker, which Order was to the effect "that the Writ of Summons commencing this action and all subsequent proceedings therein be set aside on the ground that the Plaintiff has no title to administer in England or to sue in England, as administratrix of Patrick Joseph Finnegan deceased and that the Plaintiff pay to the Defendants their Costs of this Action and Application to be taxed".

2

The Plaintiff in the action is Mrs Josephine Finnegan and the title of the action is "Between Josephine Finnegan (Widow and Administratrix of Patrick Joseph Finnegan deceased), Plaintiff, and the Cementation Company Limited, Defendants", The endorsement on the Writ is this. "The Plaintiff's claim is as administratrix of the estate of Patrick Joseph Finnegan, deceased, for damages under the Fatal Accidents Acts on behalf of the dependants of the said Patrick Joseph Finnegan against the Defendants for the negligence of themselves their servants or agents as a result of which the deceased lost his life and his dependants suffered damage".

3

Patrick Joseph Finnegan, husband of the Plaintiff, was a workman employed by the Cementation Company, who were engaged on the River Erne scheme near Ballyshannon in the County of Donegal. He met with an accident on the 16th January, 1952, and he died six days later from the effects of that accident, and it is claimed on behalf of the Plaintiff that the accident which her husband sustained was due to negligence on the part of the Defendants, his employers. The Plaintiff took out letters of administration to her husband's estate in Eire on the 6th May of 1952, and the Writ in this action was issued on the 10th June, 1952. The Statement of Claim was delivered with the Writ on the 13th June, and in paragraph 1 of the Statement of Claim it is said: "The Plaintiff is the widow and administratrix of Patrick Joseph Finnegan (hereinafter called the Deceased) and she brings this action for the benefit of the dependants of the Deceased under the Fatal Accidents Acts 1846-1908 and for the benefit of the Deceased's Estate". The Plaintiff has not been granted letters of administration in this country; she has not applied for letters of administration.

4

Section I of the Fatal Accidents Act, 1846, provides: "when so ever the death of a person shall be caused bywrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony". Section II: "… every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator or the person deceased". Section III: "Provided always … that not more than one action shall lie for and in respect of the same subject matter of complaint, and that every such action shall be commenced within twelve calendar months after the death of such deceased person". An amendment was made to those provisions by section 1 of the Fatal Accidents Act, 1864, which is in these terms: "If and so often as it shall happen at any time or times hereafter in any of the cases intended and provided for by the said Act that there shall be no executor or administrator of the person deceased, or that there being such executor or administrator no such action as in the said Act mentioned shall within six calendar months after the death of such deceased person as therein mentioned have been brought by and in the name of his or her executor or administrator, then and in every -such case such action may be brought by and in the name or names of all or any of the persons (if more than one) for whose benefit such action would have been, if it had been brought by and in the name of such executor or administrator; and every action so to be brought shall be for the benefit of the same person or persons, and shall be subject to the same regulations and procedure as nearlyas may be, as if it were brought by and in the name of such executor or administrator". The result of that amendment is that if there be no executor or administrator of the deceased's estate, it is open to a person who would benefit under the provision of the Act to bring an action instead of the action being brought by the executor or administrator.

5

The Summons in this case was issued on the 12th February, 1953, and it asked for an order "that the Writ of Summons commencing this action and all subsequent proceedings therein be set aside on the ground that the Plaintiff has no title to administer in England or to sue in England as administratrix of Patrick Joseph Finnegan deceased and that the Plaintiff" be ordered to pay "the Defendants their costs of this action". The Summons was accompanied by an Affidavit of Mr. Ewing, ma nag in-; clerk to the Defendants' solicitors, which sets out in paragraph 1: "On the instructions of my principals I did on the 29thday of January, 1933, attend at the Principal Probate Registry, Somerset Mouse, Strand, London, W. C. 2. and made search and found no record of a Grant of Probate or Letters of Administration of the estate of Patrick Joseph Finnegan, deceased, being obtained in the Principal Probate Registry from 1st day of January, 1952, to 28th day of January, 1933, inclusive". It is common ground that no letters of administration have been granted to the Plaintiff in this country.

6

An Affidavit was sworn by Mr. Kent, partner in the Plaintiff's firm of solicitors, in which he deposes to the fact that the Defendants' solicitors had asked some considerable time earlier to see the letters of administration, and in paragraph 12 of that Affidavit the witness deposes: "On Monday the 11th day of August, 1932, I received a telephone call from Mr. Bernard Wellington of the Defendants' Solicitors enquiring whether he could call that day to inspect the Letters of Administration and material Birth,Marriage and Death Certificates. I therefore gave him an appointment to call at my Firm's offices for that same day at 4 o'clock in the afternoon, and when the said Mr. Bernard Wellington in my presence inspected the Letters of Administration extracted out of the Principal Probate Court situated at Dublin, and also the Birth, Marriage and Death Certificates which he had previously by letter requested inspection. Following the inspection I informed Mr. Wellington that on the facts giving rise to the Deceased's accident it did not appear that /there could be any real Defence to the Plaintiff's claims". So that as far back as the 11th August, 1952, the Defendants' solicitors had inspected the letters of administration extracted out of the Principal Probate Court at Dublin. This Summons was not issued until the 12th February, 1953, by which time more than twelve months had elapsed from the date of the death of Mr. Finnegan. It follows that no fresh action under Lard Campbell's Act can be successfully commenced and maintained now: time has run.

7

Mr. Beney on behalf of the Plaintiff, the Appellant, submitted to this Court that the Order of Mr. Justice Parker striking out the Writ and all further proceedings is wrong and that this Court ought so to say; and he made on behalf of the Plaintiff two points. The first is that when the proceedings are examined it can be said, and properly said, that the action is brought by the Plaintiff both as widow and as administratrix, that she was entitled to sue in her personal capacity as widow, and that in fact she does so, and that her action, in so far as it is based on the Fatal Accidents Act, is good. She, as widow, claims damages for herself and for the other dependants, it was said. The second point which Mr. Beney made was put by him in the form of a question: Is it right to say that a grant of letters of administration in Ireland is not sufficient to enable the grantee to take proceedings under the Fatal Accidents Actin the capacity of grantee? Section II of the Act of 1846, which I have read, says that the action "shall he brought by and in the name of the executor or administrator of the person deceased", and the submission of Mr. Beney upon his second point is that the Plaintiff, having obtained letters of administration in Dublin, can be regarded as administrate for the purposes of section II of the Act of 1846. I do not think that that submission is right. The section, when it refers to an administrator, means the person empowered by law to administer the estate of the deceased. The person who is granted letters of administration in Ireland is not a person empowered by law to administer the estate of the deceased in this country, in England, That point fails.

8

The First point, that the action is brought by the Plaintiff both as widow and as administratrix, presents greater difficulty. I refer again to the title of the action from which it appears that the Plaintiff sues as "widow and administratrix of Patrick Joseph Finnegan, deceased". She is not administratrix within the...

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