Pritam Kaur v S. Russell & Sons Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 14 December 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J1214-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 1972 |
[1972] EWCA Civ J1214-1
The Master of the Rolls (Lord Denning)
Lord Justice and
Mr. Justice
In The Supreme Court of Judicature
Court of Appeal
Appeal by plaintiff from judgment of Mr. Justice will is on 2nd June, 1972.
Messrs. Rowe & Maw, agent- for Messrs. Sal us bury & Co.) appeared on behalf of the Appellant Plaintiff.
Mr TUDOR EVANS, C, and Mr. WILLIAM WOODWARD (instructed by Messrs. Ironsides of Leicester) appeared on behalf of the Respondent Defendants.
THE MASTER OF THE. ROLLS: On 5th September 1967, Mr. Bikar Singh was working in a pit in a foundry. A skip suddenly fell on him and killed him then and there. On 7th September 1970, his widow issued a writ against his employers claiming damages for breach of statutory duty and for negligence. Her claim was under the Fatal Accidents Act 1646 and the Law Reform Miscellaneous Provisions Act 1934.
we are asked to decide this preliminary point of law. Was the action commenced within the period of three years allowed by the Statute of Limitations or is it Statute-barred? The 1939 Act, as amended by the 1954 Act, says that the action " shall not be brought after the expiration of three years from the date on which the cause of action accrued". The 1846 Act, as amended by the 1954 Act, says that it "shall be commenced within three years after the death". Nothing turns on the difference in wording. The period is the same in either cane. The first thing to notice is that, in commuting the three years, you do not count the first day, 5th September 1967, on which the accident occurred. it was so held by Mr. Justice Hovers in Marren v. Dawson Huntley Ltd (1961) 2 Q B 135. The defendant here, by his cress-notice, challenged that decision: but I think it was plainly right.
If you count three years from 5th September 1967, you get the last day as 5th September 1970. The writ here was issued on 7th September, 1970. If you looked at the dates, therefore, and nothing else, the- action would appear to be two days out of time. But, when you look at the days of the week, you see that 5th September 1970, was a Saturday, and 6th September 1970, was a Sunday. On both those days the offices of the Court were closed. As soon as they re-opened on Monday 7th September 1970, the plaintiff issued the writ. That is to say, her solicitorstook the writ to the officer of the District Registry at Leicester. A clerk in the Registry stamped it with the official stamp in the proper lace (locus sigollareJla was then duly issued. But, was it in time?
At the outlet I would emphasise that the period of limitation (three- years) is prescribed by the Statutes. It is not prescribed by the Rules of Court. II it had beer, prescribed by Rules of Court, there is a rule in the High Court (Order 3, Rule 4), and in the County Court (Order 48 Rule 10(3)), which says that, if the Court offices are closed, the time is extended till the next day. hut neither of those; rules, as I read them, applies to eases wnen the time is prescribed by Statute. I am aware that the Count: Court Rule only uses the words "time prescribed", but I think that it implies "time proscribed by these statute". I am afraid that I do not agree with the contrary view expressed by Lord Davies. in Harrison v. Armstrong (1967) 2 Q B. page 299.
The arguments en each sid evenly balanced. The defendant can say: "The plaintiff has throe years in which to bring his action. 11' the last day is a Saturday or Sunday, or wither dies of. net tc leave it tif, the last day. he ou(. sure a:ie i. ssue it the day before when the offices are open". The defendant can rely for this view on the reasoning of Lord Justice Russell in hogigspn v. (1967)2. 13. 299, and the cases tc which he refers. Tha- plaintiff can say: "The statute fpives Oe three years in which I can bring my action. if I go in to the offices on the last day, and find them closed, I ought not to be defeated on that account. I should be allowed to go next day when trie offices are open. Otherwise, I should be deprived of the three years which the Statute allows me". Theplaintiff's can rely for their view on the reasoning of Lord Justice Sellers in Hodgson v. Arm. strong, and the cases to which he refers
Those arguments arc so evenly "balanced that we can come down either way. The important thing is to lay down a rule for the future so that people cm know how they stand. In laying down a rule, we can look to parallel fields of law to see the rule there. The nearest parallel is the case whore a time is prescribed by the Rules of Court for doing any act. The rule prescribed both in the County Court and the High Court is this: If the time expires on a Sunday or any other day on which the Court office is closed, the act is done in time if it is done on the next day on which the Court office is or)on. I think we should apery a similar rule when trio time is prescribed by statute. My so doing, we make the law consistent in itself: and we avoid confusion to practitioners. so I am prepared to hold that, when a time is are-scribed by statute for doing any act, and the it ac I cat only be done if the Court office is open on the day when the rime expires, then, if it turns out in any aartcular case that the day is a Sunday or other dies non, tie time is extended until the next day on which the Court office is open
In support of this conclusion, I would refer to Hushes v. Griffiths (1862) 13 C B S 1. 325. It a as on a different Statute, but the principia wais enunciated by Chi of Justice Erie at page 333
" …where the act is to be cone by the Court, and the Court refuses to act on that day, the intendment of the law is that the party shall have until the earliest day on which the Court will act".
In so far as Morris v. Ripcords 45 L. T. 210, and Gelmini v. Moriggia (1913) 2 K. B. 549, proceeding on the footing that the time was not extended, thou are no longer to be followed
in my opinion, therefore, the plaintiff here had until 7th September 1970, in which to issue his writ. He issued it on that day. He is, therefore, in time. I would allow the appeal, accordingly.
LORD JUSTICE KARMlNSKI: I have read the judgment of the Master of the Rolls, and agree entirely with it. In Hughes v. Griffiths (1862) 13 O. B. N. SI. 325, Mr. Justice Byles, dealing with a different Statute which gave a creditor seven days to set the Court in motion, said this: "Consequently the seventh day must be upon which the Court can be set in motion; otherwise the early would not have that which the legislature contemplated that he should have…
Applying these words to the present case, the legislature here given the widow three years to bring her action from the date of the death of the deceased husband. Through the last I two days of the three years happening on days when the Court offices wore closed, the writ could not be issued. It was in pi fact issued on the next day when the Court offices wore opened.
I do not know why it was left to the very last day of the three years to issue the writ, and I want to say nothing to encourage parties or their solicitors to leave the issue of the writ to the very last day. In the result I agree that the writ was issued in time, and that this appeal should be allowed.
Mr. JUSTICE MEGARRY As a bird of passage in this Court I feel a proper diffidence in expressing my views at any length when my Lords have been able to dispose of the appeal with brevity. 1have the excuse that we are differing from the Judge below; but in truth what I have succumbed to is the temptations of an interesting arid not unimportant point of law, and the support to be found in some further authorities
The case arises upon two similar statutory provisions. There is a claim under the Fatal Accident Acts, 1846 to 1959; and by section 3 of the Act of 1846, as amended by the Law Reform (Limitation of Actions) Act, 1954, section 3, "every such action shall be commenced within three years after the death of such deceased person". There is also a claim in tort for negligence and breach of statutory duty which falls within the Limitation Act 1939 section 2(1), as amended by the Act of 1954, sect:: en 2(1); and this provides that the action "shall not be brought after the expiration of three years from the date cm which the- cause of action accrued". he point, I may say, has been to. hem in argument on the difference in wording between "within three years after the death1, and after the expiration of three years from the date". Act one time there was some argument en whether or not the period was to be reckoned by excluding the dat. on which the accident occur. hud, but in the end the point was not pressed. The decision of gr. Justice- Havers in Rgggron Y H. 135, based on the Limitation Act 1939 section 2(1),j was that the day of trie aceicent was to be excluded in trie i computation of the- time; aed in the present ease the Judge applied that decision. The- language of section 2(1), with the phrase "after the expiration of three years from the date", plainly supports that view. If the wording of the fatal Accidents Acts, with the phrase "within three years after thedeath", is less apt, it would nevertheless be regrettable to introduce -any fine distinctions, especially as the period of three years was inserted into each statute by the same Act, that of 1954. I wound therefore agree the Judgein excluding the day of the accident from trio computorti on under both head?. The accident occurrcu on Tuesday, 5th September 1967. The as not issued until Monday, 7th September 1970. Excluding the- day of the accident, the statutory three years thus expired at the end of 5th September 70: and that as a Saturday. Both or; that day and on tne next day the- offices of the Supreme Court and the District...
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