Pontin v Wood
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES |
| Judgment Date | 11 December 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1211-1 |
| Date | 11 December 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J1211-1
Lord Justice Holroyd Pearce and
Lord Justice Davies
In The Supreme Court of Judicature
Court of Appeal
MR L. Lan, Q. C. and N.C. Tapp, (instructed by Messrs. Parker, Thomas & Co., Agents for Messrs. Max Engel & Co. of Northampton) appeared on behalf of the Appellant (plaintiff).
MR B. Cauifield, Q.C. and MR P. Bennett, (instructed by Messrs. Oswald Nickson, Collier & Co., Agents for Messrs. Rey & Vials of Northampton) appeared on behalf of the Respondents (Denedants).
LOUD JUSTICE HOLROYD PEARCE: The Plaintiffs appeal from an order of Mr. Justice Edmund Davies setting aside the writ and the subsequent proceedings on the ground that the indorsement of the writ did not state the cause of action with sufficient particularity. As a result, the Plaintiffs' claim is statute barred against the Defendant who was at all times fully aware of the nature of the claim and the cause of action from a contemporary letter, and who before the issue of this summons had received the Plaintiffs' statement of claim which has been irregularly served on him.
On the 18th March, 1958 the Plaintiffs were injured on a pedestrian crossing by the Defendant's motor cycle. On the 27th March, 1958 the solicitors who were then acting for the Plaintiffs wrote to the Defendant making a claim for damages on the ground of the Defendant's negligent driving. The Defendant's insurance company then wrote to the Plaintiffs' solicitors. There followed protracted but abortive negotiations. In July, 1960 the Plaintiffs' present solicitors took over the case. On the 13th March, 1961 the writ was issued by the Plaintiffs' solicitors. It was indorsed: "The Plaintiffs' claim is for damages for personal injuries. "That indorsement was defective, since it did not set out the cause of action. On the 25th March the writ was served personally on the Defendant, but he did not enter an appearance. On the 6th July, 1961 the Plaintiffs' solicitors wrote to the insurance company informing them as a matter of courtesy that no appearance to the writ had been entered and that, therefore, they were entitled to sign judgment in default, but that they did not want the insurance company to be prejudiced. On the 22nd July the Defendant was served personally with the fully particularised statement of claim in which there was no defect. This was procedurally wrong, because the Defendant had not entered an appearance. Therefore, under the rules the Plaintiffs should have filed a statement of claim in the office together with an affidavit of service of the writ. On the 4th August, without entering an appearance, the Defendant's solicitors took out this summons to set aside the writ, the service thereof and all subsequent proceedings. On the 16th August the summons heard by the District Registrar. He refused to set aside, holding that the implication of the indorsement was that the claim was for negligence and that the Defendant was aware of that fact from the correspondence. The Defendant appealed. On the 26th August the Defendant entered an appearance. On the 12th October the learned Judge reversed the order of the District Registrar and set aside the writ and all subsequent proceedings.
In a careful judgment the learned Judge regretfully came to the conclusion that the writ was a nullity until its defect was cured by a proper statement of claim; that the defect had not been cured at the relevant time, namely, the time of the hearing of the summons, and that, therefore, since the period of limitation had expired, the court ought to set the proceedings aside. We have had the advantage of very careful and able arguments and of reading at least one important authority which was not cited to the learned Judge. In the result, with all respect to him, I find myself impelled to a different view.
The problem turns on the answer to three questions. First, was the writ a nullity which was incurable, or was it a defective writ whose defect could be cured by the statement of claim? Secondly, if it was merely defective, was it right to set aside the writ itself and thereby prevent the Plaintiffs from curing its defect by delivering a statement of claim? Thirdly, has the Defendant's delay in taking out the summons to set aside barred him from taking objection to the defective writ?
Order 70, Rule 1, reads as follows: "Non-compliance with any of these Rules, or with any Rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, bat such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit. "Rule 2 reads:" No application to set aside any proceedings for irregularity shall be allowed unless made within reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity." The provisions of Rule 1 date from 1876. Order 59, which was couched in terms substantially similar, was one of the original Rules of the Supreme Court. In the 1883 Rules it became Order 70. In those days the court was deliberately freeing itself from the technicalities which had marred the procedure in earlier times - such technicalities as are to be found in Tidd's Practise of the Courts of King's Bench and Common Pleas. No doubt it was in reliance on Order 70 that Lord Justice Bowen expressed himself in 1887 in words which are quoted by Mr. Justice Wallace of the Supreme Court of New South Wales in an article in the current number of the Australian Law Journal, volume 36, part 4. Lord Justice Bowen gave the following assurance to his American colleagues: "It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation." These words are cited from Chief Justice Vanderbilt's book, improving the Administration of Justice.
The Order gives power to amend and provides that noncompliance with the Rules shall not render the proceedings void unless the court directs. The tenor of the Order shows that it is directed to the curing of that which is capable of cure, to saving rather than destroying. I do not take the view that its tenor should be reversed merely because the period of limitation has expired. The courts will not, except in special circumstances, allow amendments that will take away a defence that has arisen under the statute. ( Weldon -v- Neal, 19 Q.B.D. p. 394, see per Lord Esher, M.R. at p. 396). They will not add a new cause of action or allow a plaintiff to substitute a fresh case. ( Marshall -v- L.P.T.B., 1936 3 A. E. R. p. 23;Batting -v- L. P. T. B., 1941, 1 A. E. R. p. 226). But I do not accept that they should therefore refuse any normal aid which would be given as of course under Order 70 if no question of limitation arose – aid which is directed not to setting up new cause of action or a new case, but to regularising the procedure of a known genuine case commenced before the time limit expired but containing technical defects. That is a matter to which Lord Esher certainly was not directing himself, and it does not come within the ambit of his general rule.
If, however, proceedings are in truth a nullity, Order 70 is powerless to help them, since no amendment can improve that which is in itself void and of no effect. (See the observations of Lord Denning delivering the judgment of the Board in a case in the Privy Council, Foy -v- United Africa Company, hitherto only reported in The Times newspaper of the 26th November, 1961, and those of Mr. Justice Devlin in Hill -v- Luton Corporation, 1961 2 K. B., p. 387, at p. 390.)
It is difficult to define precisely the difference between that which is a nullity and cannot therefore be cured by any amendment or subsequent proceedings and that which is defective and can be cured. Nevertheless, it is clear that this writ was not a nullity, and Mr. Caulfield was right to concede it. One has seen very many such writs. Since they are followed and cured by statements of claim that set out the cause of action with precision (Mill -v- Luton Corporation supra), no-one pays attention to their defects and nobody world purest that they are void and that therefore all the subsequent proceedings are nullities. It is only because of the limitation that this writ has had so much attention and ingenuity focussed on it.
Since, therefore, the writ was not a nullity, but was merely defective, is it right to set aside the writ itself, s opposed to setting aside the service of the writ? it is for the Defendant to persuade the court in its discretion that the court should do so under Order 70. Whereas the setting aside of the writ...
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