Jones v Jones

JurisdictionEngland & Wales
JudgeLORD JUSTICE SALMON,LORD JUSTICE KARMINSKI,LORD JUSTICE DAVIES
Judgment Date15 January 1971
Neutral Citation[1970] EWCA Civ J0422-4
Judgment citation (vLex)[1971] EWCA Civ J0115-1
Date15 January 1971
CourtCourt of Appeal (Civil Division)
Donald Jones
(Plaintiff respondent)
and
Richard Garnett Jones
(First Defendant)
and
Ronald Arthur Allen
(Second Defendant Appellant)

[1970] EWCA Civ J0422-4

Before:

Lord Justice Salmon,

Lord Justice Sachs and

Lord Justice Karminski.

In The Supreme Court of Judicature

Court of Appeal

(On appeal from order or Mr. Justice Chapman, London, 2nd February, 1970).

Mr D. Draycott Q. C. and Mr N. Frisker (instructed by Messrs. T. D. Jones & Co., agents for Messrs. Morgan Lloyd Evans & Hughes of Cardiff) appeared for the second defendant (appellant).

Mr Tasker Witkhis, Q. C. and Mr C. Oddie (instructed by Messrs. Haymon & Walters, a gent a for Messrs. Emmanuel Marks & Cocker of Abortillery, Mon.) appeared for the plaintiff (respondent).

LORD JUSTICE SALMON
1

As long ago as the 19th July 1965 Mr Donald Jones was riding as a passenger in a car driven by Mr Richard Garnett Jones, when there was a collision between that motor car and another car driven by Mr Ronald Arthur Allen. As a result of that accident the plaintiff suffered quite severe injuries.

2

He consulted his solicitor. The solicitor seems to have had some fairly desultory negotiations with hr Richard Jones's Insurers. Then, on the 28th November 1966, about 16 months after the accident, Mr Donald Jones's solicitor for the first time wrote a letter to Mr Richard Arthur Allen suggesting that the accident and the injuries were due to his negligent driving. There was no reply to that letter.

3

On the 13th June 1968, just within the limitation period (about five weeks within the expiration of the limitation period) a writ was Issued by Mr Donald Jones against Mr Richard Gannett Jones and Ronald Arthur Allen. On the 9th May, as the 12 months during which the writ could be served ma about to expire, the plaintiff's solicitor instructed a process server to serve the first defendant. He took the view (to which I will refer later) that if the first defendant was served within the 12-months' period then the law allowed him to serve the second defendant outside the 12-months' period.

4

Some difficulty was encountered in serving the first defendant, but eventually service was effected on the 11th day of June 1969; So that it was in time by just a short head, because time expired on the 12th June 1969.

5

On that latter date the plaintiff's solicitor sent the writ to his London agents, with instructions to make arrangements to serve the second defendant. The time for serving the second defendant expired on that very day. This letter took a few days to reach the London agents who obviously had doubts as to whether they were within time to serve the second defendant because they consulted a practice mister as to whether the writ was validfor service the second defendant. The practice caster told them that in his view it was; and accordingly the wit was served on the second defendant on the 3rd July 1969. A week later he entered a conditional appearance, A week after that he Issued a summons to set aside the service.

6

The plaintiff's London agents then went back to faster Ritchie (who had been the practice master who gave them the advice to which I have referred) and, as a matter of precaution asked him to renew the writ on an ex parte application. This he did. Accordingly, the renewed writ was re-served on the 19th August 1969.

7

The second defendant then applied to set a side the service and the renewal of the writ. On the 12th November 1969 the second defendant was successful: the renewal and service of the writ were set a side by Master Elton.

8

The plaintiff appealed from that decision of the master to the learned judge, and the matter came before Mr Justice Chapman on the 2nd February 1970. Two points were argued before the learned judge. The first was that on a true construction of the Rules the writ had been served in time: In as much as the service of the writ on the first defendant ms within 12 months of the Issue of the writ It was legally possible to serve the writ on the second defendant after the expiration of the 12 months. The second point which was argued on behalf of the plaintiff was, that if he mis wrong on the construction of the Rules, then the learned judge In his discretion should renew the writ.

9

The learned judge found It unnecessary to decide the point of law, although he expressed a provisional view that the construction for which the plaintiff contended was wrong. He did, however, consider that in all the circumstances of the case he should exercise his discretion by extending the time for service, and he did so; and against that decision of the learned judge the second defendant now appeals.

10

I think it is necessary to deal with the point of construction. She rule in question is Order 6 Raid 3, which is in these terms: "For the purpose of service, a writ (other than a concurrent wit) is valid in the first instance for 22 months beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ". That is paragraph 1. Paragraph 2 reads: "Where a writ has not been served on a defendant, the court may by order extend the validity of the writ from tiae to time for such period not exceeding IS months at any one time…" I do not think I need read the rest of that paragraph.

11

Mr Tasker Watkins has argued with his usual resouroeful-news, that if a writ is issued on any defendant within 12 months after its issue, it is then a valid writ for the purposes of service upon any other defendant who may be joined In the action. Persuasively as the argument is put, It seems to me to lead to the most starting results. But of course, If the order does In fact mean on its face what Mr Tasker Watkins contends, we must give effect to it, however strange the results may be.

12

Looking at the question as a pure point of construction, I cannot accept the argument. I think the words which are Important are theses "For the purpose of service, a writ Is valid" -those words are in sub-rule 1 of Rule 8. Then it goes on to say what happens if it is not served within the 12 months: "where a writ has not been served on a defendant, the court may by order extend the validity of the writ from time to time …"

13

I read the rule as meaning that for the purpose of service on a defendant, a writ is valid on the first Instance for 12 months, and that where the writ has not been served on that defendant the court may by order extend the validity of the writ from time to time for the purpose of serving it on him. It seems to me that it is only by reading the words "a defendant" as "any defendant" in sub-rule 2 that the argument on behalf of theplaintiff could get on its feet. In any event even if one were to read the words any "defendant" as "any defendant", I still do not think that the argument could possibly succeed.

14

I am confirmed in this view when I compare that rule with the rule which it replaced in 1964, namely, the old Order 8 Rule 1, which perhaps I ought to read: "No original writ of summons shall be in force for more than 12 months from the day of the date there of, including the day of such date; but if any defendant there in named shall net have been served therewith, the plaintiff may, before the expiration of the 12 months, apply to the court or a judge for leave to renew the writ; and the court or a Judge, if satisfied what reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent writ of summons be renewd", Then the rule deals with the periods for which it maybe renewed.

15

Mr Taster Watkins a concedes that under the old rule, which I have just read, the fact that you have served one defendant within the 12 months does not make the writ valid for service on any of the other defendants outside the 12 months' period. The reason for this, and the justice upon which the old rule is founded, is obvious. Had the law been otherwise, It would have meant that supposing for the sake of argument, there were three defendants and you issued your writ and then served one of them within the 12 months, you might wait two, three or more years before you served the other defendants. You could have served them lawfully two or three years later; and that might have been the first that they had ever heard of any action against them.

16

It is not impossible, but it Is fantastically unlikely that the Rules Committee intended to alter the law so that the very odd results to which I have just referred should be possible. I cannot for my part think of any reason why they should have intended to do so, Had they intended to do so, I am certain that they would have used very much clearer language than is used in the new Order 6 Rule 8 for the purpose of expressing thatIntention As I have already said, looking at the language of Order 6 Rule 8 by itself, I do not think It la reasonably capable of the construction for which Mr Tasker Watkins contends. Had the Rules Committee intended to alter the rule so that it should bear that construction, it would have do so in plain terms.

17

It may be asked: What was the point of altering the old rule? The old rule had stood for many years In that form and there was a certain archaic ring about its language. There had also been some difficulties, alluded to in the cases, about its construction Indeed, there was one case that came before the Court of Appeal In which we had to decide what "from the day of the date thereof, Including the day of such date" meant. We managed to do so but only by a majority. So those anachronisms in the language of the old rule, and the difficulty which It created, were, so it was hoped, cleared up by the far simpler language of the present rule. But It does not, in my judgment, lead to what I regard as the startling result for which Mr Tasker...

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