Harkness v Bell's Asbestos and Engineering Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 13 October 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J1013-3 |
| Court | Court of Appeal |
| Date | 13 October 1966 |
[1966] EWCA Civ J1013-3
The Master Of The Rolls
(Lord Denning)
Lord Justice Diplock and
Lord Justice Russell
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice James
Mr C. P. Harvey, Q. C. and Mr H. J. Byrt (instructed by Messrs Fisher, Dawson & Wasbrough, Agents for Messrs George Cass, Rylands & Co. Whitby) appeared as Counsel for the Appellant.
Mr J. P. Harris (instructed by Messrs Burton, Yeates & Hart, Agents for Mr. W. O. Pinkney, Bridlington) appeared as Counsel for the Respondents.
The Master Of She Rolls: Thomas William Harknese was employed as a beller and pipe coverer for 24 years His work Drought him into contact with asbestos. In 1961 he left his employment. In May 1963 he was found to he buffering from a disease called Asbestosis, Until that time he did not know he was suffering from it He says that it was caused by long exposure to asbestos He wished to bring an action against his employers saying that they did not supply him with the proper mask or protective Clothing In April 1964 his advisers were about to issue a writ but found that he would be barred by the Limitation Acts of 1939 and 1954 These impose a three-year limitation for personal injuries It says that, when a person is in ignorance of the material facts he can get she leave of the Court for the purposes of the Act If he gets leave, it means that he can overcome the time-bar in this ways At the trial of the action he must satisfy the Court that he did not know material facts until too late and that he brought the action within twelve months of discovering them On so satisfying the Court, he is not barred But in order to take advantage of the 1963 Act, he has to get leave beforehand.
The solicitor for Mr. Harkness made an application for leave in this want He got his client. Mr. Harkness. To swear an affidavit setting out the circumstances and concluding "I Make application by virtue of Section 1 of the Limitation Act. 1963, for the leave of the Court that Section 2(1) of the Limitation Act, 1939, shall not afford a deface to My proposed action for damages".
The solicitor left the affidavit with the District Registrar at Scarborough There was no oral hearing. All that happened was that the Registrar, a day or P two later, issued an order in these terms: "Upon reading the Affidavitof Thomas William Harkness, filed herein, it is ordered that Section 2(1) of the Limitation Act, 1939 shall not afford a defance to the plaintiff's proposed action for Damages" The solicitor for Jar Harkness assumed that all was in order He issued a writon the 17th April 9 1964 there were negotiations for a settlement. Time dragged on. Some years later the defendants discovered two serious flaws in the proceedings.
The first flaw was that the District Registrar had no jurisdiction to give leave at all. The jurisdiction is rested in a Judge in chambers in person. That was enacted by a new rule, Order 128, rule 1(1), which was made in December 1965 or January 1964 but in April 1964 both the solicitor for Mr. Harkness and the District Registrar were unaware of it. I think their ignorance was very pardonable. The new rule had not been circulated or published in such a way are to come to the notice of practitioners.
The second flaw was the form of the order. The Registrar's order was that the section "shall not afford a Defence to the action" He had no power to make an order in that form. Even a Judge in chambers could not make such an order. All he could do was to give neither leave to proceed nor the purposes of Section 1 of the 1963 Act".
When the defendants discovered those two flaws, they made an application to Mr. Justice Blain in chambers to set the proceedings aside. He took the view that, owing to the flaws, The order made by the Registrar was a nullity. And as it was a nullity, the Judge thought he could do nothing about it at all. So he made no order at all. That put the plaintiff in a quandary: for if the order of the Registrar was a nullity, the plaintiff had no leave at also it was useless for Mr. Harkness to apply afresh for a new grantof leave, because it was far too late. He had to get his leave within twelve months of getting to know of the material facts, that is within twelve months of Kay 1963 He had, therefore, to rely on the leave given in April 1964. Nothing oleo would do so he had to get the Registrar's order rectified and treated as good asat that date, April, 1964, or he would surely fail. In this quandary he applied to Mr. Justice James in chambers to rectify the Registrar's order and have it treated as valid He made this application under the new Order 2, rule 1. But Mr. Justice James held that he could not do anything to rectify the flaws The Registrar'8 order wee nullity and he could do nothing about it Now Mr. Cyril Harvey, on behalf...
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