Heaven v Road and Rail Wagons Ltd
| Jurisdiction | England & Wales |
| Date | 1965 |
| Year | 1965 |
| Court | Queen's Bench Division |
Practice - Writ - Failure to serve within 12 months - Application to extend validity - Extension of validity depriving defendant of defence of limitation - Discretion of court - Principles of exercise - New rules - Whether relevant principles changed -
The plaintiff, claiming to have suffered personal injuries in an accident while employed by the defendants, notified them of the existence of a claim within 27 months, and issued a writ within 33 months of the accident, but the writ was not served within 12 months of issue because of negotiations, delay in obtaining instructions and inadvertence. On January 26, 1965, on the ex parte application of the plaintiff, the validity of the writ was extended, and it was served on the defendants who applied to strike out or set aside the writ and for a declaration that the writ and service were invalid. The master dismissed the application, and the defendants appealed.
Held, (1) that, if the validity of the writ were not to be extended, the defendants would have an unanswerable defence by virtue of the three-year period of limitation prescribed by the
(2) That the authorities before January 1, 1964, laying down the rule of practice that, to justify the exercise of the discretion to extend the validity of a writ, so as to deprive the defendant of a defence under a statute of limitation, there must be exceptional circumstances (post, p. 1255A–C), had not ceased to be binding as a result of the alteration of the Rules of the Supreme Court, or, in particular, as a result of the replacement of the old Ord. 8, r. 1, by the new R.S.C., Ord. 6, r. 8 (2),F1 which became operative on January 1, 1964 (post, pp. 1252F–H, 1257G–H).
(3) That, accordingly, since there were no exceptional circumstances in this case, the appeal would be allowed and the writ and service would be set aside.
Per curiam. Exceptional cases, justifying a departure from the general rule, might well arise where there has been an agreement between the parties, express or implied, to defer service of the writ; or where the delay in the application to extend the validity of the writ has been induced, or contributed to, by the words or conduct of the defendant or his representatives; or, perhaps, where the defendant has evaded service or where, for other reasons without the plaintiff's fault, the writ could not have been served earlier even if the application had been made and granted earlier (post. p. 1257G).
APPEAL from Master Ritchie.
The plaintiff, Christopher James Heaven, employed by the defendants, Road and Rail Wagons Ltd., suffered personal injuries in an accident said to have occurred on March 31, 1961. In June, 1963, the existence of a claim was notified to the defendants and, on December 20, 1963, a writ was issued but service was delayed, negotiations taking place between the plaintiff's solicitors and the defendants' insurers until September 15, 1964, by which time the negotiations broke down and the defendants' solicitors knew of the issue of the writ. Further delay occurred and, on January 26, 1965, on the plaintiff's application ex parte the validity of the writ was extended for three months. On January 29, 1965, the writ was served on the defendants' solicitors, who applied to strike out or set aside the writ and for a declaration that the writ and service were invalid. On February 22, 1965, the application was heard inter partes by Master Ritchie, and was dismissed with costs. The defendants appealed. The appeal was adjourned into open court for judgment.
The facts are more fully stated in the judgment.
Ronald Waterhouse for the plaintiff.
Michael Wakeford for the defendants.
The following list of authorities cited in argument has been supplied by the courtesy of counsel: Battersby and Others v. Anglo-American Oil Co. Ltd.F2; Sheldon v. Brown Bayley's Steel Works Ltd.F3; and E. Ltd. v. C.F4
April 9. MEGAW J. read the following judgment. This appeal raises once again a question which, I am told, has been argued frequently during the past year or so before Queen's Bench masters and judges in chambers. I have myself, at least once previously, been required to give a decision upon it in chambers, and I am told that recently at least three other judges sitting in chambers have been asked to decide it. The facts no doubt differed, but the basic question, I understand, was the same. The question is whether a change in the pre-existing law as to the extension of the validity of a writ, upon application made after the initial twelve months' validity has expired and after the period of limitation would have run if no writ had been issued, has been brought about by alterations in the wording of the R.S.C. introduced by the comprehensive amendments which became operative on January 1, 1964. Since none of the decisions in chambers has, so far as I know, been taken to the Court of Appeal for review, and since the same question continues to be raised in argument, under the inspiration, perhaps, of a note in the Annual Practice, I have thought it right to adjourn this appeal into court for judgment. A week after the hearing of this present case, the same question was again argued before me in yet another case, of course, on different facts, in which I shall also give judgment today.
The plaintiff suffered personal injuries in an accident which is said to have happened on March 31, 1961, while he was employed by the defendants. The existence of a claim was notified to the defendants in June, 1963. A writ was served on December 20, 1963. The writ had not been served when its period of 12 months' validity, allowed by R.S.C. Ord. 6, r. 8 (1), expired on December 19, 1964. In an affidavit, sworn by a managing clerk of the plaintiff's solicitors, it is said that the reason, initially, for delay in service of the writ was because negotiations were then taking place between those solicitors and the defendants' insurers. I am prepared to accept that the plaintiff's solicitors reasonably believed up to September 15th, 1964, that negotiations were still alive. There is no doubt, however, that on that date, at latest, negotiations broke down and the plaintiff's solicitors knew it.
The defendants' solicitors then knew, if not before, that a writ had been issued.
According to the affidavit which I have mentioned, further information and instructions, of an unspecified nature, had then to be obtained before counsel could be instructed to settle a statement of claim. The affidavit goes on:
“When instructions were received and the Christmas vacation concluded, I found that I had inadvertently overlooked the fact that the writ of summons had not been served.”
Supported by that affidavit, application was made ex parte on the plaintiff's behalf for the renewal of the writ for six months. It was submitted in the affidavit that “such renewal would not prejudice the defendants as they have had knowledge of the plaintiff's claim since June, 1963.”
At the date when the application was made, not only had the validity of the writ already expired; in addition, over three years and nine months had passed since the date when, on the plaintiff's version, the accident which gave rise to the action had occurred. It follows that, if the validity of the writ were not to be extended, and if the plaintiff were left to issue a fresh writ, the defendants would have an unanswerable defence by virtue of the three-year period of limitation prescribed by the
The application was granted, ex parte, on January 26, 1965, the master endorsing the affidavit with the words: “Leave renew three months.” The writ, thus retrospectively extended, was served on the defendants' solicitors on January 29, 1965. Application was promptly made on behalf of the defendants to strike out or set aside the writ and for the writ and service thereof to be declared invalid. That application was heard, inter partes, by Master Ritchie on February 22, 1965. He dismissed the application with costs. From that dismissal the defendants appeal.
Counsel for the plaintiff, supporting the master's decision, has argued that the rule of practice laid down by the authorities before January 1, 1964, when major revisions of the R.S.C. were introduced, has ceased to apply, and the authorities have ceased to be binding, as a result of alterations in the rules. Counsel accepts and adopts the proposition set out in a note in the Annual Practice, 1965, Vol. 1, p. 68, which also appeared in the 1964 edition. That note, referring to the new Ord. 6, r. 8, which replaced the old Ord. 8, r...
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