Singh (Joginder) v Duport Harper Foundries Ltd

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Wednesday, 3 November 1993

This is an appeal from an order made by His Honour Judge Black, sitting as a High Court Judge on 17 July 1992 when he upheld the decision of District Judge Merriman made on 4 March 1992 granting the plaintiff's (now the respondents) application for an extension of the validity of the writ in this action.

On 29 April 1988 the respondent claims that he suffered personal injuries in the course of his employment and that the injury was due to the negligence and breach of statutory duty of his employer, the present appellant. There followed a considerable delay and it was not until the 5 April 1991, almost at the end of the limitation period that the respondent issued a writ. The writ was not served and its validity expired on 5 August 191. It was not until 10 January 1992 that an application was made to the Court ex parte on behalf of the respondent for the validity of the writ to be extended, and that application was granted on 4 March 1992 when the District Judge extended the time for service of the writ until 11 March 1992, a period of some seven months. The writ was duly served on 5 March 1992.

In support of his application the respondent filed an affidavit by Mr. Joginder Singh, an employee of his solicitors. The explanation given in that affidavit for the delay was that another of the employees of the solicitor, a Mr. Biggerstaff, who was responsible on his principal's behalf for the conduct of the action, was erroneously under the impression that the writ could only be properly served if accompanied by a relevant medical report. Mr. Biggerstaff admitted that he was at fault in making this error. It appears further from the affidavit that Mr. Biggerstaff had become unwell in June 1991 but had continued to work at the office until 3 November 1991 when he suffered a heart attack. The affidavit does not reveal when Mr. Biggerstaff's colleagues became aware that the writ had expired, nor whether there was any further delay from that time until the application was made to the court in January 1992. Nor is there any explanation why a medical report dated 6 September 1990 from a consultant accident surgeon, Mr. Ahmed Ahmed (which is among the Court of Appeal papers) was not available for service with the writ.

The argument both here and below has turned on the meaning of RSC Ord.6,r.8. Sub-rule 1(b) provides that the writ in this case was valid in the first instance for a period of four months, beginning with the date of issue. As already observed that meant this writ expired on 5 August 1992.

Sub-rule (2) gives the Court power to extend the validity of the writ and is in these terms:

"Subject to paragraph (2A), where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 4 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any) as the Court may allow".

Sub-rule (2A) provides:

"Where the Court is satisfied on an application under paragraph (2) that, despite the making of all reasonable efforts, it may not be possible to serve the writ within 4 months, the Court may, if it thinks fit, extend the validity of the writ for such period, not exceeding 12 months, as the Court may specify."

The learned judge based his decision on sub-rule 2A saying (at page 30 of the Appeal bundle)

"I am satisfied that the words of Ord.6,r.8 at sub-rule (2A) do give the court a discretion to extend the validity of the writ for up to 12 months".

In my judgement the learned judge was in error in his interpretation of the sub-rule. While it undoubtedly does give the court a discretion to extend the validity of the writ for up to twelve months it does so only in specifically defined circumstances viz where despite the making of all reasonable efforts, it may not be possible to serve the writ within 4 months. It is a provision designed to meet a situation where the defendant cannot readily be served because, for example, he has gone abroad or cannot easily be traced. In the present case there was no difficulty in serving the appellant and there was no evidence of any need to make all reasonable efforts to do so. Accordingly if the respondent is to succeed in this appeal he must do so by virtue of the provisions of sub-rule 2.

Mr. Pendlebury for the appellants submits that the District Judge had no jurisdiction to extend the validity of the writ in the terms he did on two grounds;

1).because he had no power to extend the period of validity for a period in excess of four months, at any one time and

2).because any application under Ord.6,r.8(2) must be made either during the period of the original validity of the writ, or during the period of four months next following.

Dealing with the first submission Mr. Pendlebury points to the words of the sub-rule:

"…. the Court may by order extend the validity of the writ from time to time for such period not exceeding 4 months at any one time…."

In the present case the District Judge granted what was in effect an extension of seven months, i.e. from 5 August 1991 to the 11 March 1992. Counsel argues that such an order was in direct conflict with the rule. He fortifies this submission by reference to the Annual Practice 1993 6/8/3 where it is stated

"The application for renewal should ordinarily be made before the writ has expired. The court has power to permit a later application, but it must be made within the appropriate period of the first expiry. The laxer practice of allowing two or more successive renewals to bring the writ up to date is no longer available."

For my part I can see no answer to this submission. The words in the sub-rule "from time to time" refute the suggestion that more than one renewal can be granted on the same day. Furthermore the sub-rule says in terms that the extension granted is to be for such period not exceeding 4 months at any one time. Yet the District Judge purported to order an extension of seven months under this sub-rule. In my judgment counsel is right in his submission that the District Judge exceeded his jurisdiction.

Counsel also relies on the statement in the Annual Practice above referred to in support of his further submission that the application for an extension of the validity of the writ must be made within the appropriate period after the first expiry. The authority relied upon in the Annual Practice to support that proposition is Chappell v Cooper (1980) 1 WLR 958.

At the time that case was heard the appropriate period for the validity of the writ was 12 months and not 4. After quoting the sub-rule Roskill LJ (at page 966) said:

"The writ in the action of Player v Briguiere was issued on December 6, 1974. The 12 months therefore expired on December 5, 1975, and the second period of 12 months, which would be the maximum for which a timeous extension might be allowed, would have run out on December 5, 1976. But the affidavit in support of this application was not sworn until June 13, 1979, some three and a half years after that last date. In view of those dates it seems to me clear, with all respect to Mr. Turner, beyond doubt that we have no power under the rules to grant the extension sought".

Thus the learned Lord Justice held that the power of renewal could only be exercised during the period of twelve months next following the primary period of validity. If that be right the District Judge in the present case would clearly have exceeded his jurisdiction, but Mr. Pendlebury has very properly drawn our attention to a more recent authority which appears at first sight to cast doubt on that decision: Ward Lee v Lineham (1993) 1 WLR 754 The facts of that case were unusual; the tenant of business premises applied to the County Court under section 24 of the Landlord and Tenant Act 1954 for the grant of a new tenancy. The Tenant provided a copy of the originating application for the landlord and requested the issue of a summons which had to be served within two months. Unfortunately the court failed to serve the proceedings upon the landlord as required by the County Court rules. When the oversight was discovered the landlord refused to consent to an extension of time for service of the summons. It was not until a period of over four months had expired that the tenant applied to the court for an extension. The landlord opposed the application and it was dismissed by the Judge. The tenant was accordingly in the same difficultly as the respondent in the present appeal in that not only had the period of original validity expired namely two months, but a further two months had elapsed. If the decision in Chappell v Cooper is correct, the learned Judge would have had no jurisdiction to entertain the application but he in fact dismissed it in the exercise of his discretion.

The tenant appealed relying on County Court Rules...