Sheldon v Brown Bayley's Steel Works Ltd and Dawnays Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE DENNING |
| Judgment Date | 22 July 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0722-4 |
| Docket Number | 1951 S. No. 4145. |
| Court | Court of Appeal |
| Date | 22 July 1953 |
[1953] EWCA Civ J0722-4
Lord Justice Singleton, and
Lord Justice Denning
In The Supreme Court of Judicature
Court of Appeal
Interlocutory List
Counsel for the Appellant: MR. V. LLOYD-JONES, Q. C., and MR. D. CROOM-JOHNSON, instructed by Messrs W.H. Thompson.
Counsel for the Respondents; Dawnays, Ltd.: MR. NEIL LAWSON, instructed by Messrs Kenneth Brown, Baker Baker, Agents for Messrs Gee & Edwards, Swansea.
The Writ in the action was issued on the 3rd October, 1951, just within the 12 months limit prescribed by section 3 of the Fatal Accidents Act, 1846. There were two Defendants, neither of whom was served with the Writ within 12 months from the day of its date. We are only concerned with the second Defendants, Dawnays, Ltd.
The first Defendants made a conditional appearance and successfully applied to have service upon them set aside. Dawnays, Ltd., entered an unconditional appearance. The Affidavit of the Secretary shows that they heard of the first Defendants' successful application. Thereafter they made an application of the like kind. The Summons is dated the 25th November, 1952. The Master granted the application and set aside the service of the Writ.
On appeal Mr. Justice Barry upheld the Order of the Master. He said that it was a difficult case, and he granted leave to appeal to this Court. On the facts as to service I am in complete agreement with the Master and the Judge; indeed, there was no appeal as to this.
Under order 8, Rule 1, the Writ of Summons ceases to be in force after 12 months from the day of the date thereof. A note in the Annual Practice at page 59 says: "This means shall be in force for the purpose of service for twelve months, not that the writ ceases to be efficacious for any purpose whatever. And after an undertaking by solicitors to accept service and appear (see Order 9, Rule 1), it would require a very strong case to induce the Court to refuse renewal"; and support for that statement is to be found in the report of the case of In re Kerly, Son & Verden, which is reported in 1901 1 Chancery Division at page 467; see the judgment of Mr. Justice Farwell in the Court of first instance atpage 471, and that of Lord Justice Stirling in the Court of Appeal at page 478.
Order 64, Rule 7, provides: "A Court or a Judge shall have power to enlarge or abridge the time appointed by these Rules, or fixed by an order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed. Provided that when the time for delivering any pleading or document or filling any affidavit, answer or document, or doing any act is or has been fixed or limited by any of these Rules or by any direction on or under the Summons for directions or by any order of the Court or a Judge the costs of any application to extend such time and of any order made hereon shall be borne by the party making such application unless the Court or a Judge shall otherwise order."
It has been held over a long period of years that this Rule enables the Court to renew a Writ even though application is not made until after the expiration of 12 months laid down under order 8, Rule 1. The Court will not normally exercise its discretion in favour of the renewal of a writ after the period of service has expired if the effect of doing so will be to deprive a Defendant of the benefit of a limitation which has accrued.
In the present case, if the Order of Mr. Justice Barry is right Dawnays are free, for it is too late for the issue of another Writ, having regard to the terms of Section 3 of the Fatal Accidents Act, 1846.
The position was considered by the Court of Appeal in case of Battersby and Others v. Anglo-American Oil company, Ltd., and Others, which is reported in 1945 1 King's Bench Division at page 23, a case in which the Court whould not exercise its discretion in favour of the renewal of a Writ after the period allowed for service had expired, nor would the Court allow an amendment of the Pleadings to be made as the effect of doing so would be to deprive a Defendant of the benefit of a limitation which had accrued.
In that case the learned Counsel for the Defendants who appealed, Mr. Valentine Holmes, argued (and I read from page 24 of the report): "Where an original writ of summons has been in force for more than twelve months without being renewed it is no longer in force and is a nullity; Rule 3 of the Supreme Court, Order 8, Rule 1; but by virtue of what is now Order 64, Rule 7, there is normally power to renew it after the expiration of that period of twelve months: In re Jones, Eyre v. Cox: The Court, however, will never exercise this discretion when its exercise will defeat the vested rights of a defendant to plead a statute of limitations."
The Court accepted that submission. The judgment of the Court of Appeal was delivered by Lord Goddard, and I read a passage from the bottom of page 28 and the top of page 29: "Before dealing with the authorities on this point we think we ought to refer to one matter dealt with in the judgment of Lord Justice MacKinnon In Holman's case, which was not strictly necessary for the decision, but from which we feel constrained to differ. That, also, was a case under the Fatal Accidents Act, 1846, and, as in the present action, a writ was issued within twelve months of the death, but was not served, and application for renewal was not made within twelve months of the date of issue. Accedingto an argument advanced by the plaintiff, Lord Justice MacKinnon is reported as saying: 'Mr. Fox-Andrews for the plaintiff points out, and I think with reason, that this is not a case where the order of the learned judge, in extending the period for the service of...
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