Krakauer v Katz
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE ROMER |
| Judgment Date | 12 January 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0112-2 |
| Court | Court of Appeal |
| Docket Number | 1941. K. No. 293. |
| Date | 12 January 1954 |
[1954] EWCA Civ J0112-2
Lord Justice Denning and
Lord Justice Romer
In the Supreme Court of Judicature
Court of Appeal
Counsel for the Appellant: MR JOHN MARNAN (instructed by Messrs Simmons & Simmons, London).
Counsel for the Respondent: MR H. LESTER (instructed by Messrs Charles Caplin & Co., London).
A preliminary point has arisen as to whether in an interlocutory matter this Court can or should admit further Affidavits on behalf of the Defendant. It was suggested that an appellant on an interlocutory matter has a right in this Court to adduce further evidence by Affidavit. I am clearly of opinion that he has no such right. It is a matter of discretion in this Court whether or not further evidence by Affidavit should be admitted.
In exercising our discretion in this case, there is an overwhelming obstacle in the way of the Defendant. At the hearing below the Judge in Chambers asked his learned Counsel whether he wanted to answer the Affidavit of the Plaintiff and whether he wanted an adjournment so to do, and his Counsel said that he did not. Counsel thus took his stand on the evidence as it then stood before the learned Judge; and it would be contrary to the right exercise of our discretion if we were to allow Counsel for the Defendant to go back on that position and to introduce further evidence in this Court.
We must therefore proceed with the case on the evidence as it stood before the learned Judge.
The facts in this case are somewhat striking. On the 19th June of 1941 the Plaintiff issued a Writ against the Defendant claiming damages for breach of contract, or alternatively an account. The Writ was served upon the Defendant and an Appearance was entered on his behalf on the 25th July, 1941, by his then Solicitors, and the Plaintiff's Solicitors ought to have delivered a Statement of Claim within ten days thereafter. Time may not have run during the Vacation, but at all events the Statement of Claim ought to have been delivered in due time after entry of Appearance.
In point of fact the Plaintiff did nothing; he did nothing fox over 12 years, and in October 1953, by his Solicitors, he wrote to the Defendant intimating that this claim was being revived, and eventually his Solicitors gave notice of their intention to proceed with the action. The Defendant went to new Solicitors, who gave notice of change and took out a Summons to dismiss the action for want of prosecution. The Summons came before Master Diamond, who took the view that after 12 years the action should be dismissed for want of prosecution. The Plaintiff appealed to Mr. Justice Croom-Johnson, who took the opposite view and said that the action was not to be dismissed.
The learned Judge was much influenced by a technical point. When the new Solicitors, Messrs Simmons & Simmons, filed notice of change at the Central Office, they at the same time issued the Summons to dismiss for want of prosecution; whereas in truth they ought to have served a copy Notice of change on the Plaintiff's Solicitors before they issued the Summons, because under Order 7, rule 2, sub-rules (1) and (6), it is quite plain that the copy Notice ought to be served before the change is effective. So there was an irregularity, but it caused no injury to anyone. It just merely a day wrong in the order of procedure.
When the Summons to dismiss came before the Master no point was taken on this irregularity; the matter was...
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Preliminary Sections
...433 Kponuglo v. Kodaja 2 W.A.C.A. 24 at 25. .......................................................... 352 Krakauer v. Kartz (1954) 1 W.L.R. 278 or (1954) 1 All E.R. 244. ......246 Kumo v. The State (1968) N.M.L.R. 227. ......549 Lababedi & Ors v. Lagos Metal Ind. (Nig) Ltd (1973) 1 S C 1 .......
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INHERENT JURISDICTION OF COURT
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Table of Cases
...(Pt. 98) 419………...……………329, 342, 343 Kotoye v. Saraki (1993) 5 N.W.L.R. (Pt. 296) 710……………………..............438 Krakauer v. Katz (1954) 1 W.L.R. 278, (1954) 1 All E.R. 244……….......…....275 Kraus Thompson Org. v. N.I.P.S.S. (2004) 17 N.W.L.R. (Pt. 901) 44………........351 Kubau v. Rilwanu (2014......