Moon v Atherton
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE ROSKILL |
| Judgment Date | 14 April 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0414-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 April 1972 |
[1972] EWCA Civ J0414-1
The Master of The Rolls (Lord Denning)
Lord Justice Edmund Davies and
Lord Justice Roskill
In The Supreme Court of Judicature
Court of Appeal
Mr. Mark Myers (instructed by Messrs. Moon Beever & Hewlett) appeared on behalf of Alice Art, Appellant.
Mr. Geoffrey Jones (instructed by Messrs. Park Nelson Dennes & Redfern & Co.) appeared on behalf of the Respondent Defendant.
Between 1962 and 1964 a block of 12 flats was built at Petherton Court, Gayton Road, Harrow. They were built by building developers with the object of selling them to purchasers, or, rather, of selling long leaseholds to 12 tenants. But the transaction was carried through in a way which is now beooming fairly common. The building owners sold the reversion to a management company of which the 12 tenants were the 12 shareholders. The building owners stipulated on their assignment that they would not be liable thereafter in respect of anything in regard to the premises.
It so happened that some 5 years later the roof was found to be very badly constructed. The water came through. Repairs had to be done to the roof which covered all the 12 flats. The tenants of the 12 flats in the building all combined together to have the roof repaired. It cost them £5,000. They wished to obtain compensation, if they could, for this outlay. They seem to have been advised that the only person whom they might seek to make liable was the architect, Mr. Atherton. 11 out of the 12 agreed to join in an action. Each made a contribution to the cost. Miss Moon, one of the tenants, was named to lead an action. The writ was headed:-
"Glennys Moon (Spinster) suing on behalf of herself and the tenants of the block of flats known as Petherton Court, Gayton Road, Harrow (except Catherine Eluned Roberts)" - that is the one who stood out - "Plaintiff and Eric Atherton Defendant."
The writ was issued on the 15th day of October 1970. It was within the 6-year limit. A defence was put in. Particulars of the statement of claim were given. There were discussions about having preliminary points of law decided. But in September of 1971 Miss Moon herself and 9 others decided to withdraw. They didnot want to risk litigation and the costs of trial. So they decided to discontinue the claim on their own account. But there was one lady, Mrs. Alice Art, one of the tenants, who wanted to go on. She qualified for legal aid, whereas the others did not. She did not stand at risk for costs with the others.
On 10th September 1971 an application was made in these words: "An application on the part of Alice Art (Widow) one of the tenants referred to in the title to the writ of summons herein, for leave to amend the statement of claim as set forth in red ink in the pleading annexed hereto." The amended statement of claim showed the sole plaintiff as Alice Art (Widow) and claimed on her behalf alone.
That was not the proper form of application, but Master Ritchie granted it in substance. He required the plaintiffs' solicitors to write an open letter withdrawing the claims of Miss Moon and the others, except Mrs. Art. He gave leave to substitute Mrs. Art as plaintiff, subject to her written consent being filed. And he ordered Miss Moon to pay the costs up to that time.
The defendant, Mr. Athherton, appealed to the Judge in chambers. Mr. Justice Chapman allowed the appeal. He would not allow Mrs. Art to be inserted as sole plaintiff. He said "This is a misconceived action by Miss Moon suing the defendant. She purports to sue on behalf of herself and others. Whether this is a representative action is highly dubious. If Mrs. Art has a claim she can bring her owm action." Now there is an appeal to this Court.
In a representative action, the one person who is named as plaintiff is, of course, a full party to the action. The others, who are not named, but whom she represents, are also parties to the action. They are all bound by the eventual decision in the case.They are not full parties because they are not liable individually for the costs. That was held by Mr. Justice Eve in Price v. Rhondde Urban District Council 1923 Weekly Notes 228, But they are parties because they are bound by the...
To continue reading
Request your trial
-
Commission Recovery Ltd v Marks & Clerk LLP
...1042, referred to at para 44 above. The court in Prudential did not have cited to it, however, the decision of the Court of Appeal in Moon v Atherton [1972] 2 QB 435. In that case a represented person applied to be substituted for the named claimant after the limitation period had expired ......
-
Irish Shipping Ltd v Commercial Union Assurance Company Plc (Irish Rowan)
...is to be treated as being not a rigid matter of principle but a flexible tool of convenience in the administration of justice." 59 In Moon v. Atherton (1972) 2 QB 435 the tenants of a block of flats sued an architect for damages for negligence in supervising its construction. Chapman J. hel......
-
Lloyd v Google LLC
...1042, referred to at para 44 above. The court in Prudential did not have cited to it, however, the decision of the Court of Appeal in Moon v Atherton [1972] 2 QB 435. In that case a represented person applied to be substituted for the named claimant after the limitation period had expired ......
-
Credit Suisse Private Equity LLC v Eric Meserve Houghton
...once common issues are cleared away is illustrated by two cases cited by McPherson SPJ, Coombs v Bristol & Exeter Railway Co 135 and Moon v Atherton. 136 In both, the effect of the Court's decision was that a person on whose behalf the action was brought was substituted for the original pla......
-
Action
...for the original plaintiff by the Court for any reason is to bring him in as at the date of the original writ - Moon v. Atherton (1972) 2 Q.B. 435. Where a Court holds that the plaintiff has no locus standi to sue, the proper order to be made is that striking out the suit and not dismissing......
-
Representative Procedures and the Future of Multi‐Party Actions
...see [1923] WN 228). For support for the propriety of a representativeplaintiff claim in negligence, see Lord Denning in Moon vAtherton [1972] 2 QB 435, 442100 M.A. Jones, Textbook on Torts (London: Blackstone, 6th ed, 1998) 400.July 1999] Representative ProceduresßThe Modern Law Review Limi......