Heywood v Wellers
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE JAMES,LORD JUSTICE BRIDGE |
| Judgment Date | 13 November 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J1113-6 |
| Date | 13 November 1975 |
| Court | Court of Appeal (Civil Division) |
[1975] EWCA Civ J1113-6
The Master of the Rolls (Lord Denning)
Lord Justice James and
Lord Justice Bridge
In The Supreme Court of Judicature
Court of Appeal
Appeal by plaintiff from judgment of His Honour Judge McDonnell on 20th December, 1974, at Croydon County Court.
Mrs. Heywood, the plaintiff appellant, appeared in person.
Mr. KEITH SIMPSON (instructed by Messrs. Wellers) appeared on behalf of the Respondent Defendants.
It all started in a public house. Sheila Heywood met there Reginald Marrion. He was a police officer with 18 years' service, a married man with two sons. She was on her own with one son, living in a house at Penge, where she took in sub-tenants. They became friendly and associated much together. She lent him and he said he would pay her back at £10 a month. He paid the first month £10, but nothing afterwards. She tried to break off the association. He was upset about it. He forced his attentions on her against her will. He actually struck her. So severely that he dislocated her shoulder. She complained to the police inspector. On 4th July, 1972, Marrion was suspended from duty. The police authorities took disciplinary proceedings against him. Rather than face them, he resigned from the force. That was on 23rd October, 1972. He still pestered her, going to her house against her wishes. So she thought she would sue him for the £40 he owed her. She went to solicitors for that purpose.
The firm were Wellers of Bromley. They had a branch office at 37A Widmore Road, Bromley. On 18th January, 1973, Mrs. Heywood called there. She was taken in to see Mr. John Price. He was quite a young man, only 22 years of age. She thought he was a solicitor. In point of fact he was only a clerk. He was not qualified, but was hoping to become a legal executive. He had passed some of the examinations leading, to it. She never saw any of the partners in the firm, nor any qualified person.
She told Mr. Price that she had lent Mr. Marrion £50, of which £40 was still outstanding. She said she wanted a solicitor's letter sent to him claiming repayment. Mr. Price asked how she came to make the loan. She then told Mr. Price of her past relationship with Mr. Marrion, and said that she wanted to get rid of him. Mr. Price suggested that she should apply foran injunction. He explained what this meant, namely, that theCourt would order Mr. Marrion to refrain from pestering her and not to resort to her house. He said that proceedings could be taken in the County Court. She asked how long it would take and how much it would cost. He said three weeks, and it could cost £25. She told Mr. Price, however, only to claim the £40 at that stage.
On 23rd January, 1973, Mr. Price wrote to Mr. Marrion claiming the £40. On 28th January he replied, saying he had no money and would not pay. The letter was very abusive of Mrs. Heywood. He said that she was a wicked woman and mentally deranged. On that same evening he went to her house, insisted on her letting him in, and threatened her with violence.
That incident was the last straw. On 5th February, 1973, she went to Mr. Price and asked him to apply for an injunction. He suggested that she should apply for legal aid, but her means were too great. On 12th February 1973 she wrote to him saying that she did not wish to "impose upon national charity". She reminded him in her letter that "your esimated cost of this injunction was £25 and the cost of the debt action was £3 (to me)", and enclosed her cheque for £25. The Judge found that she thought that £30 would be sufficient to cover the cost: and that, had she known the cost which would be involved, she would never have started proceedings.
So, believing that it would only cost £25 for an injunction and take three weeks, she instructed Mr. Price to take proceedings. The rest of the story is one long tale of the mistakes that Mr. Price made.
On 21st February, 1973, he instructed Counsel to settle proceedings for an injunction. Counsel advised that, as there was no claim for damages, they could not be taken in the County Court but had to be taken in the High Court. So Mr. Pricestarted them in the High Court without telling Mrs. Heywood or warning her of the extra cost which this would involve.
On 27th February, 1973, he issued a writ in the High Court and on that very day instructed Counsel to apply ex parte for an interim injunction, supported by an affidavit sworn that day by Mrs. Heywood. It was a mistake to do this, because it would mean extra costs and there was no great urgency to justify it. After much hesitation, the Judge granted it. Mr. Price never told Mrs. Heywood that the ex parte injunction would double the cost.
On 27th February, 1973, he got process servers to serve the writ and papers on Mr. Marrion. They found him in a public house and handed them to him: but he let them fall on to the floor, saying he did not want them and was not interested in them. It was undoubtedly good service.
On 2nd March, 1973, Mr. Price instructed Counsel to apply to continue the injunction until trial. This application was made on notice to Mr. Marrion and was undoubtedly good. The Judge made this order:-
"(a) restraining the defendant from touching, molesting or otherwise seeking physical contact with the plaintiff;
(b) restraining the defendant from visiting entering or otherwise approaching the dwelling-house at 4 Avington Grove, Penge, London, S.E.20 owned and partially occupied by the plaintiff;
(c) restraining the defendant from telephoning, speaking to o otherwise accosting the plaintiff;
(d) restraining the defendant from threatening, abusing or in any way seeking to intimidate the plaintiff either by word or by deed, until after the hearing of the trial or further order. Plaintiff's costs, including ex parte application, in any event".
On 15th March, 1973, the order for an injunction Was servedpersonally on Mr. Marrion. Mr. Marrion never entred an appearance. He should have done it within fourteen days from service of the writ, that is, by 13th March, 1973. But he never entered it. Seeing that there was no appearance, Mr. Price was in a position to obtain final judgment. All that he had to do was to serve a statement of claim on Mr. Marrion. Then, if Mr. Marrion did not serve a defence (as he probably would not), Mrs. Heywood could move for judgment in default - see Order 13, r. 6 and Order 19, r. 7. In that way Mrs. Heywood would have obtained a final injunction by the middle of April, 1973, together with a final order for costs against Mr. Marrion. That failure of Mr. Price (to take proper steps in default of appearance) was the most serious fault he made.
On 30th March, 1973, Mr. Marrion broke the injunction, by telephoning her late at night. On 20th April, 1973, he broke it again. Mr. Marrion telephoned to Mrs. Heywood, called at her house and pestered her exceedingly. On 25th May, 1973, Mr. Marrion again broke it seriously. He called on her at her house and put her in great fear. She was very distressed. On every occasion Mrs. Heywood gave a full report in writing to Mr. Price, but he took no steps to bring the breaches before the Court. On the contrary, he advised Mrs. Heywood that she could do nothing about these visits unless she got in touch with the police and refused to let Mr. Marrion in. The Judge found that the effect on her was this: "Mr. Price said that I had to let the police find Marrion on the premises. What was the good of an injunction if I had to have a policeman watching?" Instead of bringing the breaches before the Court, on 2nd June, 1973, Mr. Price took out a summons for directions: and then spent six or seven months in trying to serve it, in getting it heard, and in getting an order for a speedy trial. That was quite wrong. Seeing thatthere was no appearance, there was no need for any summons for directions: and, in any case, a summons for directions should not be taken out until after close of pleadings, see Order 25, r. 1. Here the pleadings were never closed. On 9th August, 1973 (very belatedly) Mr. Price served a statement of claim, but the defence was never put in. He should have served the statement of claim as long ago as March 1973: and got judgment then.
In May 1973 the solicitor did issue a summons for £50 money lent. Mr. Marrion paid £40. That ended that item.
On 8th November, 1973,? Mr. Marrion again broke the injunction. Mrs. Heywood wrote to Mr. Price telling it all. She said that Mr. Marrion had called at her house and left her feeling like a nervous wreck.
On several occasions Mr. Price advised Mrs. Heywood that it was no use bringing Mr. Marrion before the Court because — "Mr. Marrion would only be committed if by his conduct he tried to get Mrs. Heywood to stop proceedings, used or threatened violence, or by his conduct forced Mrs. Heywood out of her house and from living there." That advice was much mistaken. The one thing that Mrs. Heywood wanted was to have Mr. Marrion brought before the Court. She did not want to have him committed to prison. If he had been brought before the Court for those plain breaches of the injunction, the Court would have given him a severe warning: and that would, in all probability, have been sufficient to stop him.
On 17th January, 1974, whilst Mr. Price was away, a partner in Welders wrote to Mrs. Heywood asking her to send another £100 on account of costs. (She had already paid £173.) This snapped her patience. She replied saying that this demand for a further £100 was extortion and asked them to drop the case immediately. So they served notice of discontinuance. They got out their bill of costs showing £446.39 owing to them. But Mrs. Heywood got hercomplaint in...
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