Re Caines, decd
| Jurisdiction | England & Wales |
| Date | 1978 |
| Year | 1978 |
| Court | Chancery Division |
Practice - Pleadings - Striking out - Originating summons - Affidavit in support - Defendant's summons to strike out originating summons - Allegation of no locus standi and no cause of action - Affidavit read before master - Adjournment to judge - Plaintiff's objection to reading affidavit in support - Whether affidavit excluded as evidence -
A testator made a will by which he gave his “freehold dwellinghouse” to trustees on trust for sale for his widow for life and then for the plaintiff. The testator later seemed to have discovered that the house belonged not to himself alone but to himself and his wife. He then made a codicil whereby he gave his interest in the proceeds of sale of the house upon the trusts of the house declared by the will. The testator's wife outlived him by only a few months. After her death the plaintiff's solicitors discovered that the testator and his wife appeared to have been joint tenants in equity and that although the testator had signed a notice of severance and had given it to his solicitors, the notice did not seem to have been served on the wife. The plaintiff then issued an originating summons against the executors which disclosed none of that information but merely asserted that the plaintiff was a beneficiary under the testator's will, and sought an order for the administration of his estate, with ancillary relief. The plaintiff's affidavit sworn in support of the summons set out the facts stated above.
The executors issued a summons under
Held, (1) that as Ord. 18, r. 19 (3) provided that rule 19 should, “so far as applicable, apply to an originating summons,” there was a degree of flexibility in its application, and that made it possible to read it in a way which would avoid leaving most originating summonses outside its practical operation; that the prohibition in rule 19 (2) was a prohibition against adducing evidence “on” the application itself, which prevented the application from becoming a preliminary hearing of the proceedings, and did not apply to an affidavit which had already been put in as supporting the originating summons; and that in any case, as the unity of proceedings in the Chancery Division treated the hearing by the judge as being a mere continuation of the hearing before the master, what had already been used before the master without objection could not be excluded before the judge (post, pp. 543B–E, 544A).
Per curiam. (a) The fact that an order of the master no longer bears the name of the judge cannot have altered the point of principle (post, p. 544C).
(b) The operation of Ord. 18, r. 19 in the case of originating summonses is something that the Rules Committee might with advantage consider (post, p. 542H).
(2) That if the testator's solicitors had been guilty of negligence, the plaintiff appeared to have no claim against them, either directly or indirectly, since they had owed him no duty of care, and if the executors sued them any damages would apparently fall into residue and not go to the plaintiff; that nevertheless there was a possible case for investigation whether the testator had not been a tenant in common of the house in equity, either under the initial conveyance or by virtue of the testator's solicitors having also been his wife's solicitors, so that the delivery of the notice of severance to them sufficed as service upon the wife; that those possibilities which had yet to be explored, made it impossible to say that the plaintiff had no locus standi and had disclosed no cause of action; and that the defendants' summons should therefore be dismissed (post, pp. 545G, 546A–F, H–547A).
The following cases are referred to in the judgment:
Leeds v. Lewis (
Mitchell, In re (
Lloyd's Bank Ltd. v. Princess Royal Colliery Co. Ltd. (No. 2) (
Wenlock v. Moloney [
Robertson v. Fleming (
The following additional cases were cited in argument:
Clowes v. Hilliard (
Davies, In re (
Esso Petroleum Co. Ltd. v. Mardon [
Hubbuck & Sons Ltd. v. Wilkinson, Heywood & Clark Ltd. [
Parsons, In re (
Republic of Peru v. Peruvian Guano Co. (
PROCEDURE SUMMONS
On January 21, 1977, the defendants in the action, Cecil Servian and Frank Kenneth Liddiard Hives, the executors of the will of Harry Edward Ingram Caines deceased, issued a summons under
By his originating summons the plaintiff, as a beneficiary under the testator's will, claimed, inter alia, an order for the administration of the real and personal estate of the testator with all necessary and proper accounts, directions and inquiries.
The facts are stated in the judgment.
Jonathan Playford for the defendants.
R. M. K. Gray for the plaintiff.
October 31. MEGARRY V.-C. read the following judgment. This procedure summons raises some interesting questions. The summons which was taken out by the defendants, seeks the dismissal of the proceedings on the ground that the plaintiff has no locus stand; to bring them, and that they disclose no cause of action. The proceedings...
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