Re Clark v Forbes Stuart (Thames Street) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SALMON |
| Judgment Date | 13 March 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0313-2 |
| Court | Court of Appeal |
| Date | 13 March 1964 |
[1964] EWCA Civ J0313-2
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Mocatta
The Master of the Rolls
(Lord Denning)
Lord Justice Pearson and
Lord Justice Salmon
MR J. H. C. GOLDIE (instructed by Messrs Basil Greenby & Co.) appeared as Counsel for the Appellant.
This is the first application we have had under the new Limitation Act, 1963. That Act was designed to remedy a hardship whereby a person might suffer from a disease such as pneumoconiosis, caused by somebody's fault, and not know of it until after the three years, period of limitation had expired. This Act enables such a person to get the leave of the Court to bring an action, notwithstanding that three years have expired! and thus retain hie claim.
In this case a man named Francis William Clark slipped on some premises at No. 1 Billingsgate Market, Lower Thames Street, on the 12th February, 1960, where he had gone to collect a load of fish. He said the floors were worn smooth and were slippery: and therefore the occupier was liable to him for negligence. He got solicitors to write on his behalf in May of 1961 to a company whom they thought were the occupiers called Forbes Stuart (Billingsgate) Ltd. The solicitors acting on behalf of that company wrote letters to Mr Clark's solicitors and entered into discussions as to negligence and as to damages. They didnot take the point that their clients were not the occupiers. Those negotiations eventually came to nothing. Then on the 7th February, 1963, just within the three years, Mr Clark by his solicitors issued a writ against that company, Forbes Stuart (Billingsgate) Ltd., whom they thought were the occupiers. But when they came to serve the writ on the 9th March, 1963, they were soon afterwards, on 13th March, 1963, telephoned by solicitors who saidt "Forbes Stuart (Billingsgate) Ltd., are not the occupierss the occupiers really are an associated company, Forbes Stuart (Thames Street), Ltd. You have got the wrong defendants". By this time three years had elapsed since the accident on 12th February, 1960, So Mr Clark's solicitors had to try and do something to remedy the position,
The first thing Mr Clark's solicitors did was to apply in that action (which they had started in time on 7thFebruary, 1963) to after the name of the defendant company and change it to Forbes Stuart (Thames Street), Ltd. The ground of that application was that there was a misnomer which should be corrected. But that application did not seem to have a high chance of success.
So the next thing Mr Clark's solicitors did was to try to take advantage of the Limitation Act, 1963. They applied to Mr Justice Mocatta for leave under that Act to start a new action, this time against Forbes Stuart (Thames Street) Ltd., on the ground that they had discovered that that company were the occupiers: and they did not know it within three years of the accident. Mr Justice Mocatta refused to give leavef and now Mr Goldie on behalf of the plaintiff applies to this Court to give leave.
This is an ex parte application, without the other side being here at all. This Court, therefore, cannot decide finally whether the requirements of the Limitation Act, 1963, are fulfilled. It can only be provisional. It must be open to the defendant, if and when he is served with a writ, to take the point, both on fact and law, that the requirements of the Act are not fulfilled. We can only decide the matter today to this extent, to see whether there is a prima facie case that the requirements of the Act nan been fulfilled.
The requirements are set out in Section 1, sub-section (3) of the Act. That section says: "The requirements of this sub-section are fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until" a specified date. The question is: Is there prima facie evidence that the material facts were at all times until 13th March 1963 outside Mr Clark's knowledge or the knowledge of his solicitors? "Material facts" for this purpose are defined in Section 7, sub-section (3) of the Act which saysthat "any reference to the material facts relating to a cause of action is a reference to any one or more of the following, that is to say (a) the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action} (b) the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty; (c) the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable". Sub-section (5) of Section 7 goes on to say that a fact shall be taken to have been outside the knowledge of a person if he did not then know of it and also if he had done what was reasonable to ascertain it.
The question is whether the following fact is a material fact; namely, the fact that Forbes Stuart (Thames Street) Ltd., were the occupiers of the premises and not. Forbes Stuert (Billingsgate), Ltd. That fact does not come within -section 7(3)(a) or 7(3)(b). Does it come within section 7(3)(c)? To test it, let me take a case obviously within 7(3)(c). Suppose a man has been employed by a succession of different...
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Lucy v W T Henleys Telegraph Works Company Ltd
...as to both fact and law - including questions of the construction of the Act. That was made clear in two judgments of this Courts re Clark v. Forbes Stuart Ltd. ((1964) 2 A.E.R. 282) at page 284; and Cozens v. North Devon Hospital Management Committee (1966 2 Q.B. 330), at page 343. The dif......
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Cozens v North Devon Hospital Management Committee
...time bar. He is not in the least bound by the provisional view expressed by the Judge in Chambers who gave leave — see Re Clark v. Forbes Stuart (Thames Street) Ltd., 1964, 2 All England Reports, p. 282. 7 Suppose we were to allow the defendant to challenge the ex parte order at this stage......
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Steffensen v. Canadian Tire Corp., (1996) 109 Man.R.(2d) 143 (QB)
...obviously remedial enactment. A striking example can be seen in Re Clark v. Forbes Stuart (Thames Street), Ltd. (Intended Action) , [1964] 1 W.L.R. 836. Section 1 of the Limitation Act 1963 gives the court power to extend a period of limitation in certain cases in which the material facts o......
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Walford v Richards
...Act 1963. The identity of the garage was a "material fact of a decisive character", as washeld in this Court in Re Clark v. Forbes Stuart (Thames Street) Ltd. (1964) 2 All E.R. 282. Seeing that the plaintiffs did not have knowledge of it except within the last three years, it was a case pri......