Liff v Peasley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BRANDON,LORD JUSTICE STEPHENSON |
| Judgment Date | 14 November 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J1114-1 |
| Docket Number | 1975 L No: 3066 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 November 1979 |
[1979] EWCA Civ J1114-1
Lord Justice Stephenson
Lord Justice Brandon
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Queen's Bench Division
(Judge in Chambers)
MR J.M. CHERRY and MR. P. SURMAN (instructed by Greenwoods & Company) appeared on behalf of the Appellant (Second Defendant).
MR M. TENNANT (instructed by Outred & Company) appeared on behalf of the Respondent (Plaintiff).
MR D. TUCKER (For MR J. WOODS) (instructed by Stevensons) appeared on behalf of the Respondent (First Defendant).
This is an appeal by leave of Mr T.P. Russell, Q.C, sitting as a Deputy Judge of the High Court in the Queen's Bench Division from his refusal on 26th July, 1979 to grant three applications by MrTimothy John Spinks, the appellant.
Mr Spinks has been joined as a Defendant to an action brought against Mr Ian Stanley Peasley by Mr Raymond Jack Liff by Writ issued on 14th August,1975. Mr Liff was injured in a cross-roads collision between a Ford Cortina motor car driven by Mr Spinks, in which he was a passenger, and a Triumph motor car driven by Mr Peasley on 25th October, 1973. By Summons dated 12th March, 1979, Mr Spinks asked the Judge in Chambers to order: "1. That Notwithstanding Section 2 of the Limitation Act, 1939 as amended, the plaintiff's claim against the second defendant be struck out as being statute barred".
By amendment at the hearing of the Summons on 26th July, 1979, be asked the Deputy Judge to order two other things: "2, That further or in the alternative that the second defendant be struck out of the action having been improperly joined. 3. Further or in the alternative the action against the second defendant be dismissed for want of prosecution". The Deputy Judge made no order on the application under Item 1, and dismissed the applications under Items 2 and 3.
By his Notice of Appeal Mr Spinks asks this court for the same three things, two in slightly different form: "1. For an order that the provisions of Section 2A of the Limitation Act, 1939 as amended shall apply to the plaintiff's cause of action against the second defendant and that the plaintiff's claim against the second defendant is statute barred. 2. Further or in the alternative for an order under Order 15, rule 6 that the second defendant was improperly made a party to the proceedings in that he was joined after the expiry of the limitation period and that the second defendant cease to be a party to the proceedings. 3. Further or in the alternative for an order that the action against the second defendant be dismissed for want of prosecution".
In this court Mr Cherry has submitted that Mr Spinks was improperly joined as a party, because he was joined too late according to the Rules of the Supreme Court and to the practice established by binding authority. Hissubmissions and those of Counsel for Mr Liff and Mr Peasley require consideration of the peculiar history of Mr Liff's action, of the Rules of Court and of a number of decided cases.
First the history. The accident which injured Mr Liff took place on 25th October, 1973. The Cortina Mr Spinks was driving was apparently owned by his brother and insured with the Norwich Union ('the Norwich'). They acted promptly and on 18th November, 1973 obtained a statement from an independent eye-witness named Kennard blaming Mr Peasley only. Traffic lights were not working at the time of the accident, but Mr Spinks stopped and tried to cross carefully while Mr Peasley tried to cross much too fast without stopping. On 8th December, 1973 the police obtained a statement from another independent eye-witness named Stevens which was equally favourable to Mr Spinks.
On 28th May, 1974 Mr Peasley was convicted of careless driving. On 3rd September, 1974 Mr Peasley's insurers, Zurich Insurance ('the Zurich') notified the Norwich of Mr Liff's claim against their insured. On 1st August, 1975 Mr Liff issued his Writ against Mr Peasley alone, and on 1st September, 1975 the Norwich heard again from the Zurich. After a further year's silence the Norwich wrote again to the Zurich on 2nd October, 1976 and heard from the Zurich on 9th December, 1976 that the Zurich was not involved. By that time the three years primary period of limitation had expired on 2nd October, 1976.
The Zurich has in fact repudiated liability and brought the matter to the attention of the Motor Insurance Bureau ('The M.I.B'), who nominated the Sun Alliance ('the Sun') as insurer concerned for Mr Peasley.
This action appears to have been taken at the end of 1975 and the beginning of 1976, but the Zurich did not advise Mr Peasley's Solicitors until June 1977 and the Sun did not approach the Norwich until January 1978. Meanwhile on 27th June, 1977 Mr Liff delivered his Statement of Claim against Mr Peasley, and on 22nd September, 1977 Mr Peasley delivered his defence claiming that the collision was caused wholly or partly by the negligenceof Mr Spinks.
On 23rd January, 1978 4½ years after the accident, the Sun wrote to the Norwich as follows: "Your Insured T.J, Spinks. R.J, Liff -v- I.S. Peasley, Motor accident 25th October, 1973. It would appear from our papers that this is the first time we have approached you in the above connection. You will be familiar with the circumstances of the accident and will therefore have knowledge of how the various parties are involved. Our interest arises on behalf of the Motor Insurers Bureau who are undertaking Mr Peasley's defence following the decision of his insurers not to indemnify. An action has been started by Mr R.J, Liff who was a passenger in your insurered's Ford Cortina MVK 201E against Mr Peasley for the injuries he received and we have had a defence entered. You will be aware, we trust, that the M.I.B, Agreement relieves them of any responsibility to satisfy any judgment if there is any other known party upon whom a minimum of 1 percent contributory negligence can be proven. It will be the duty of that person's insurers to satisfy any judgment. Your insured is not yet named in the proceedings but our solicitors consider this step should be taken and notwithstanding the possibility that the limitation defence will be raised on his behalf it is felt that the court would, in its discretion, allow the action to proceed against him. In this event we are satisfied the required degree of negligence could be held to attach. We are therefore providing you with the opportunity to consider your position and to ask whether or not you wish to take over the handling of the claim that has been brought by Mr Liff. May we have your decision as quickly as possible as our solicitors have asked for our further instructions".
It is clear from this letter that it was at the instance of the M.I.B, that Mr Liff brought Mr Spinks into his action. At the same time the Sun suggested to Mr Liff's Solicitors that they should join Mr Spinks as a Defendant.
On 5th October, 1978 Master Warren made the Order which appears at page 22 of our bundle. It is headed: "Liff - Plaintiff, Peasley - First Defendantand Spinks - Second Defendant. Upon hearing the Solicitors for the parties it is ordered that Timothy John Spinks be joined as Second Defendant in this action and that the plaintiff has leave to amend the Statement of Claim as shown in the documents initialed by the Master and to re-serve the amended Statement within 14 days with leave to the Defendant to serve an amended Defence (if so advised) in 14 days thereafter and the costs incurred and thrown away by the amendments be costs in the cause".
That order calls for the following comments:- (1) The 'Solicitors for the parties' were the solicitors for Mr Liff and Mr Peasley, although Mr Spinks was wrongly entitled a party as Second Defendant. For as far as he was concerned, the application was ex parte and he was not represented at its hearing. (2) The order gives the Plaintiff leave to amend the Statement of Claim, but not the Writ, and gives the Defendant (presumably the First Defendant) leave to serve an amended defence, but gives no directions as to service on the newly joined second defendant.
On 13th October, 1978 Mr Liff's Solicitors informed Mr Spinks' brother that Mr Spinks had been joined as a second defendant and asked him to pass their letter to his insurers. So the Norwich were informed and instructed solicitors, who wrote to Mr Liff's solicitors on 11th December, 1978 as follows: "With reference to our telephone call on the 8th instant, we confirm that on the instructions of his motor insurers, The Norwich Union, we act for the second defendant. Before we enter an Appearance we should be grateful if you would let us have a copy of the amended Writ which presumably you served but which must have gone astray, We have a copy of the amended Statement of Claim and of the First defendant's defence; should there be any other Pleadings, we should welcome copies of them as well. No doubt you will extend our time for appearing pending receipt of the above documents".
A reminder on 19th December apparently stirred Mr Liff's Solicitors into appreciating that, perhaps in consequence of the form of Master Warren's Order, the Writ had not been amended as required by the Rules of the Supreme Court, Order 15, rule 8 (1). So on the 22nd January, 1979 they got MasterCreightmore to give leave to amend the Writ and sent Mr Spinks' solicitors a copy on 25th January.
On the 30th January Mr Spinks' solicitors wrote to Mr Liff's solicitors as follows: "We acknowledge receipt of your letter of the 25th instant. We enclose our Memorandum of Appearance on behalf of the second defendant on your assurance that the Writ has been served. Unfortunately we have been unable so far to trace the whereabouts of Mr Spinks and any information which your...
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