Re Pritchard, decd.; Pritchard v Deacon

JurisdictionEngland & Wales
JudgeLORD JUSTICE UPJOHN
Judgment Date14 February 1963
Judgment citation (vLex)[1963] EWCA Civ J0214-2
Date14 February 1963
CourtCourt of Appeal

In the Matter of the Inheritance (Family Provision) Act 1938

and

In the Matter of the Estate of Alfred Pritchard Deceased

Pritchard
Plaintiff Appellant
and
Deacon and others
Defendants Respondents

[1963] EWCA Civ J0214-2

Before

The Master of the Rolls

(Lord Denning)

Lord Justice Upjohn and

Lord Justice Danckwerts

In The Supreme Court of Judicature

Court of Appeal

From Mr Justice Wilberforce.

MR MARCUS ANWYL-DAVLES (instructed by Messrs Wrentmore & Son, Agents for Mr J. A. Fussell, Caerphilly, Glamorganshire) appeared as Counsel for the Appellant.

MR KENNETH RUBIN (instructed by Messrs Jaques & Co., Agents for Messrs Gwilym Jones & Davies, Mountain Ash, Glamorganshire) appeared as Counsel for the Respondents.

1

THE MASTER OF THE ROUS: Alfred Prit chard died on the 14 th Kerch, 1961. His executor proved his will on the 10th April, 1961. He was not a rich man. His estate was only worth £914. But he left it by his will to others and made no provision for his widow. She had, however, a right under the Inheritance (Family Provision.) Act, 1938, to come to the High Court and ask for reasonable provision to be made for her maintenance out of his estates She had to apply within six months of the probate of the will. That is, she had to apply before 10th October, 1961, She went to a solicitor in Mountain As and he prepared an originating summons for issue in the High Court. The summons named Mrs Pritchard as the plaintiff and the executors as the defendants. It asked is reasonable provision to be made for the widow. Her solicitor prepared it and on Friday, 6th October, 1961, he took it along to the local office of the High Court, which was at Pontypridd. It is called the Pontypridd District Registry. The officer at the Registry accepted it and sealed it with the seal of the High Court, dated 9th October, 1961. It was stamped in a circle with the words: "Her Majesty's High Court of Justice, District Registry, 9th October, 1961, Pontypridd". You might well think that Mrs Pritchard's solicitor had done his duty. He had issued the summons in the High Court and received the official seal with the date 9th October, 1961, just within the six months. The executors accepted it as being in order. Their solicitor (also of Mountain Ash) entered an appearance in the Pontypridd District Registry. The solicitors on both sides then agreed that the residuary legatees should be added as defendants. This was done and the residuary legatees duly entered an appearance. None of the solicitors saw anything wrong with the procedure: and on 11th December, 1961, they attended before the District Registrar. He directed them to file affidavits verifying the statements of fact and matters on which each party relied. The District Registrar then adjourned the summons to 11th January, 1962, for these affidavits to be filed.

2

Before the next hearing, however, the District Registrar made a discovery: and on 11th January, 1962, when the parties attended before him, the District Registrar told them that he considered the proceedings had been wrongly issued in the Registry and that he had grave doubts whether he had power to deal with the matter. The reason he said this was because of Order 54, Rule 4(b) of the Rules of the Supreme Court which says that an "originating summons shall be sealed in the Central Office and when so sealed shall be deemed to be issued". In short, Mrs Pritchard's solicitor, instead of taking the summons to the District Registry of the High Court at Pontypridd, ought to have taken it to the Central Office of the High Court in London where it would have been stamped in a circle with the words "Supreme Court of Judicature, 9 Oct. 1961, Central Office, writ, appearance, judgment".

3

In order to rectify the error Mrs Pritchard's solicitor on 6th March, 1962, took out a summons before the District Registrar in which he made an application "why this cause having irregularly issued from the District Registry instead of from the Central Office of the Honourable High Court of Judicature this cause should not be removed to the Central Office". After hearing arguments the District Registrar refused the application) He held that the proceedings were not merely irregular but a nullity. Shortly afterwards Mr Justice Wilberforce directed that the matter should be brought before the Chancery Division to review the decision of the District Registrar. On reviewing it on 5th June, 1962, he held the proceedings were a nullity and dismissed the summons.

4

This would not have mattered very much if Mrs Pritchard's solicitor could have issued another originating summons in the Central Office. It would have only meant some costs thrown away. But it was far too late then to issue a summons in the Central Office. The six months' limitation had longsince expired. So Mrs Pritchard appeals to this Court asking that the error be rectified.

5

Apart from authority, I should have thought that the High Court had ample jurisdiction to correct the error. It ought not to penalise the widow for a technical slip, especially when the defendants have not been in the least prejudiced by it, and indeed never raised it themselves. The Court ought to allow any necessary amendment to put it right.

6

I know that it has often been said that, once a defendant has acquired the benefit of a Statute of Limitations, the Courts will never allow the plaintiff to amend his proceedings or rectify any mistakes he has made, if by so doing the defendant would be deprived of the benefit of the statute. But that is far too wide a proposition. True it is that the plaintiff will not be allowed to introduce a new cause of action or substitute a fresh case, or rectify errors of substance, but he will be allowed to correct technical defects. If a plaintiff has commenced a known genuine case before the time limit has expired, but has made a technical slip in his procedure, then he will be allowed to rectify the defect if it can be done without injustice to the defendant. I will prove this by reference to cases old and new.

7

First, the old cases. The subject was much discussed in the time of Baron Parke. He was as much inclined as anyone to insist on a strict adherence to the technical rules of law, but nevertheless even he was ready to allow a plaintiff to amend a technical flaw in his process if the action would otherwise be barred by the Statute of Limitations. Thus, if the plaintiff had omitted to join as co-plaintiff someone who ought to be joined or if the plaintiff sued in the wrong capacity, e.g. his personal capacity instead of as assignee in bankruptcy, the Court would not force him to issue a new writ if by so doing it would mean that the action would be barred by a Statute of Limitations. It would allow him to amend so that he shouldnot be barred by the statute: see Brown v. Fullerton (1844) 2 D. & L. 251, 13 M. & W. 557, Christie v. Bell (1847) 16 M. & W. 669. The history of the matter is most instructive. Before the Uniformity of Process Act of 1832 the Courts would have granted such an amendment. Shortly after that Act the Judges resolved not to allow it any more. But "that resolution", said Baron Alderson "was found to be productive of great evil in cases when the action would otherwise be barred by the Statute of Limitations. We thought it right, therefore, to retrace our steps and in such case to allow an amendment": see Calverwell v. Nugee (1846) 4 D. & L. 30, 15 M. & W. 559. And the rule was ultimately settled, in the words of Baron Parke: "If the penalty be merely the loss sustained by the necessity of issuing a new writ, we determined not to assist the party; but if the penalty be the loss of the entire debt, we thought ourselves bound to help him": see Christie v. Bell, 16 M. & W. at p. 671, Goodchild v. Leadham (1848) 1 Ex. At p. 769.

8

Now the new cases. It seems to me that history is repeating itself. We have gone through a period when the Judges have been very strict and have refused to allow a technical defect to be amended, if it would deprive the defendant of a defence under the Statute of Limitations. I refer in particular to the cases from Hilton v. Sutton Steam Laundry, 1946 K.B. 65, to Finnegan v. Cementation Co. Ltd. 1953, 1 Q.B. 688, on which Mr Rubin so much relied. In the last cited case a widow sued for damages, under the Fatal Accidents Act under which the action had to be commenced with in a year of the death. She sued within the year, but by a slip she was described in the title of the writ and the endorsement "as administratrix". She was not allowed to amend so as to describe herself "as widow". She was penalised for the slip by finding her claim barred by the statute. Lord Justice Singleton said that "these technicalities are a blot on the administration of the law". Since that time, however, we have begun to retrace our steps. This Court recently in Pontin v. Wood. 1962, 1 Q.B. 594 allowed aplaintiff to amend a technical flaw, even though the period of limitation had run. The writ was indorsed with a claim for damages for personal injuries only: whereas it should have added "caused toy the negligence of the defendant". Lord Justice Holroyd Pearce said that the Court should not refuse its aid simply because a question of limitation arose. If the plaintiff sought the aid of the Court, hot to set up a new cause of action or a new case, tout to regularise "the procedure of a known genuine case commenced before the time limit expired but containing technical defects", then the Court should exercise its power to amend to help him.

9

I would approach this present case in the same spirit. The widow commenced a known genuine case before the time limit expired. There was a technical defect in the procedure but it can be rectified without the least injustice to the defendant. Mr Rubin frankly admitted that he had no merits. We can easily remedy the error by ordering this matter to be removed to...

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