Firman v Ellis

JurisdictionEngland & Wales
Judgment Date1978
CourtCourt of Appeal (Civil Division)
[COURT OF APPEAL] FIRMAN v. ELLIS INCE AND OTHERS v. ROGERS DOWN v. HARVEY AND OTHERS PHEASANT AND OTHERS V. S. T. H. SMITH (TYRES) LTD. AND ANOTHER [1977 F. No. 545; 1977 I. No. 4376; 1976 D. No. 40; 1977 D. No. 115; 1976 P. No. 1493] 1978 Jan. 11, 12; Feb. 6 Lord Denning M.R., Ormrod and Geoffrey Lane L.JJ.

Limitation of Action - Personal injuries - Time limit - Court's power to override time limit - Writs issued but not served during negotiations - Failure by Plaintiffs' solicitors to serve or renew writs within limitation period - New writs issued - Court's discretion to “disapply” normal three-year limitation period - Whether plaintiffs' possible remedy against own solicitors relevant circumstance to be taken into account in exercising discretion - Practice - Application to judge - Limitation Act 1939 (2 & 3 Geo. 6, c. 21) (as amended by Limitation Act 1975 (c. 54), s. 1), s. 2D - Limitation Act 1975, s. 3

After the Limitation Act 1975 came into operation plaintiffs in four actions, who had been injured in road collisions on various dates, three of the accidents being in 1973 and the fourth in 1970, applied to a judge of the High Court to be allowed to proceed with their claims which were otherwise statute-barred. In the first three cases, the claims had been made soon after the accidents and the writs issued in time; liability was not disputed; and negotiations for a settlement were being carried on with the defendants' insurers, while further delays were caused by medical examinations and reports. In each case, by an oversight of plaintiffs' solicitors, the writs issued were not served on the defendants or renewed within the year provided under the Rules of the Supreme Court, and applications to renew them out of time were opposed by the defendants, who relied on the defence that the actions were statute-barred under the Limitation Act 1939, though none was prejudiced thereby since they were well informed of the plaintiffs' claims. In each case the registrar or master and the judge on appeal had refused leave to renew the writs and held that the actions were statute-barred.

In the fourth case, the defendant car driver had joined as third parties a tyre company whose negligent repair of his tyres was alleged by him to have caused the accident; the plaintiffs therefore sought bo amend their writ to join the tyre company as defendants and the company agreed to an application for the joinder on a date within the limitation period; but by a clerical error in the plaintiffs' solicitors' office, the application was made one day out of time; and though the registrar granted leave to amend the writ to join the company as defendants, that order was made in the absence of the company. The company thereupon applied to another registrar to set the joinder order aside; the registrar did so, and Rees J. on appeal set it aside on the ground, inter alia that there was no power to add a defendant after the limitation period had expired.

On the plaintiffs issuing new writs and subsequent applications, four judges of the High Court exercised their discretion to allow the actions to proceed under section 2D (1) of the Act of 1939F1; in the third case Lawson J., while granting the application to proceed on a new writ, rejected an application by the plaintiffs for leave to proceed by renewing the original writ under R.S.C., Ord. 6, r. 8.

In the fourth case, the defendants claimed on the trial of preliminary issues before Cusack J. that the plaintiffs' action could not be allowed to proceed and that they could not rely on the retrospective provisions of section 3 of the Act of 1975F2 because the order of Rees J. setting aside the amended writ and joinder of the company was “a final order or judgment” within section 3 (2); that that disposed of the cause of action so far as the tyre company was concerned; that the plaintiffs were estopped from reopening it; and that the issue of limitation decided by Rees J. was res judicata. Cusack J. ordered that the plaintiffs' action against the company could proceed.

On appeal by the defendants in all four cases and a cross-appeal by the plaintiffs in the third action against Lawson J.'s refusal to give them leave to renew their original writ: —

Held, dismissing the defendants' appeals and the cross-appeal, (1) that Parliament had by clear words in section 2 conferred on the court a virtually unfettered discretion to allow any action for damages for personal injuries to proceed after the normal three-year limitation had expired if it appeared to the court “equitable” to do so; that the case for exercising that discretion in favour of the plaintiffs in the cases under appeal was overwhelming, since it would prejudice them greatly to hold that their actions were statute-barred by reason of minor slips by their solicitors, whereas to allow the actions to proceed would not in the least prejudice defendants who had been fully apprised of the claims soon after the cause of action accrued and who now sought to take advantage of the limitation defence, and thereby to transfer liability for damages from their own insurers to those of the plaintiffs' solicitors, a fortiori (per Ormrod L.J.) where, in the first three cases, the relevant circumstances to which the court had to have regard in acting under section 2D, set out in subsection (3) (a) to (e), were satisfied by those plaintiffs.

Per curiam. The grant by Parliament of the wide discretion to the courts by section 2D is a revolutionary and valuable change which will enable justice to be done even at the expense of some certainty; and the relevant words of the statute are so clear that they cannot be construed restrictively as applying only to exceptional cases.

Per Lord Denning M.R. In construing the new provisions the court can and should consider the Law Reform Committee's Report to Parliament in 1974 as part of the background to the Act (post, p. 11A).

Per Ormrod and Geoffrey Lane L.JJ. Where the words of a statute are capable of having only one meaning, no further inquiry from reports of committees is proper or permissible (post, pp. 17G–18A, 21G, H).

(2) That the plaintiffs in the fourth action should also be allowed lo proceed by issuing a fresh writ joining the tyre company as defendants, for (per Ormrod and Geoffrey Lane L.JJ.) though the registrar's order allowing them to join the company was not a nullity it became void when successfully challenged before Rees J. (per Lord Denning M.R.) the registrar's order allowing the joinder was void ab initio since it was made in the company's absence and everything that followed on it was equally void; that, accordingly, the plaintiffs could not be said to have “commenced an action” concluded by “a final order” and; they were therefore within the provisions of section 3 of the Act of 1975 and could commence an action by issuing a fresh writ joining the company as defendants, since there was no res which could found an estoppel and they were not estopped by res judicata.

(3) That applications under section 2D should be made by the issue of a fresh writ and not by seeking the renewal of the original writ; and, in view of the wide range of matters to be considered in exercising the discretion under section 2D such applications should be made to a judge, and not to a master or a registrar, for decision.

Heaven v. Road and Rail Wagons Ltd. [1965] 2 Q.B. 355 considered.

(4) That as the court exercising the new discretion under section 2D had under subsection (3) to have regard to “all the circumstances of the case.” the existence or non-existence of a remedy against the plaintiffs' solicitors was one of those circumstances.

Dicta in Birkett v. James [1978] A.C. 297, H.L.(E.) distinguished.

Orders of Kerr, Talbot, Lawson and Cusack JJ. affirmed.

The following cases are referred to in the judgments:

Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147; [1969] 2 W.L.R. 163; [1969] 1 All E.R. 208, H.L.(E.).

Bickel v. Duke of Westminster [1977] Q.B. 517; [1976] 3 W.L.R. 805; [1975] 3 All E.R. 801, C.A.

Birkett v. James [1978] A.C. 297; [1977] 3 W.L.R. 38; [1977] 2 All E.R. 801, C.A. and H.L.(E.).

Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. [1975] A.C. 591; [1975] 2 W.L.R. 513; [1975] 1 All E.R. 810, H.L.(E.).

Cartledge v. E. Jopling & Sons Ltd. [1963] A.C. 758; [1963] 2 W.L.R. 210; [1963] 1 All E.R. 341, H.L.(E.).

Craig v. Kanssen [1943] K.B. 256; [1943] 1 All E.R. 108, C.A.

Dryden v. Dryden [1973] Fam. 217; [1973] 3 W.L.R. 524; [1973] 3 All E.R. 526.

Easy v. Universal Anchorage Co. Ltd. [1974] 1 W.L.R. 899; [1974] 2 All E.R. 1105, C.A.

F. (Infants) (Adoption Order: Validity), In re [1977] Fam. 165; [1977] 2 W.L.R. 488; [1977] 2 All E.R. 777, C.A.

Finch v. Francis (unreported), July 21, 1977, Griffiths J.

Heaven v. Road and Rail Wagons Ltd. [1965] 2 Q.B. 355; [1965] 2 W.L.R. 1249; [1965] 2 All E.R. 409.

O'Connor v. Isaacs [1956] 2 Q.B. 288; [1956] 2 W.L.R. 585 & 3 W.L.R. 172; [1956] 1 All E.R. 513 & 2 All E.R. 417, C.A.

Smith v. Central Asbestos Co. Ltd. [1973] A.C. 518; [1972] 3 W.L.R. 333; [1972] 2 All E.R. 1135, H.L.(E.).

Wachtel v. Wachtel [1973] Fam. 72; [1973] 2 W.L.R. 366; [1973] 1 All E.R. 829, C.A.

Ward v. lames [1966] 1 Q.B. 273; [1965] 2 W.L.R. 455; [1965] 1 All E.R. 568, C.A.

The following additional cases were cited in argument:

Buck v. English Electric Co. Ltd. [1977] 1 W.L.R. 806; [1977] I.C.R. 629.

Hilton v. Sutton Steam Laundry (A Firm) [1946] K.B. 65; [1945] 2 All E.R. 425, C.A.

Hoystead v. Taxation Commissioner [1926] A.C. 155, P.C.

Jones v. Jones [1970] 2 Q.B. 576; [1970] 3 W.L.R. 20; [1970] 3 All E.R. 47, C.A.

McCafferty v. Metropolitan Police District Receiver [1977] 1 W.L.R. 1073; [1977] I.C.R. 799; [1977] 2 All E.R. 756, C.A.

Mitchell v. Harris Engineering Co. Ltd. [1967] 2 Q.B. 703; [1967] 3 W.L.R. 447; [1967] 2 All E.R. 682, C.A.

Seabridge v. H. Cox & Sons (Plant Hire) Ltd. [1968] 2 Q.B. 46; [1968] 2 W.L.R. 629; [1...

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