Singh (Santosh Kumari) v Atombrook Ltd (trading as Sterling Travel)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR,SIR JOHN MEGAW |
| Judgment Date | 17 June 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0617-2 |
| Docket Number | 88/0520 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 June 1988 |
(suing as Administratrix of the estate of the late Mr. Ranjit Singh deceased)
[1988] EWCA Civ J0617-2
Lord Justice Kerr
and
Sir John Megaw
88/0520
1987 S No. 0713
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SOUTHAMPTON DISTRICT REGISTRY
(MR. JUSTICE HUTCHISON)
Royal Courts of Justice
MR. THOMAS WEITZMAN (instructed by Messrs. Trethowans, Solicitors, Poole, Dorset, BH15 1DB) appeared on behalf of the Defendant (Appellant).
MR. DAVID BARTLETT (instructed by Messrs. Bruttons, Solicitors, Fareham, Hampshire, PO16 OAJ) appeared on behalf of the Plaintiff (Respondent).
This is an appeal by the defendants from an order made by Mr. Justice Hutchison sitting at Winchester on 4th February 1988, whereby he affirmed an order of Mr. District Registrar Bailey Cox made in the Southampton District Registry on 4th January 1988. Both orders set aside at the request of the defendants, a judgment which had been obtained by the plaintiff against them in an incorrect name, but in each case on terms that they bring into court the full sum claimed, about £1,300, on the ground that the indicated defence was shadowy. The appeal is on the ground that this was an irregular judgment—irregular to the point of being a nullity—with the result that notwithstanding the far-reaching changes introduced by the new 0.2, they were entitled to have it set aside as of right, or ex debito justitiae, to use the phrase used in a number of the authorities, and accordingly without the imposition of the condition that they bring the amount claimed into court. They also submit that both the District Registrar and the judge were wrong in allowing the writ to be amended so as to substitute their correct name for the name in which they had been sued.
The claim arises in sad circumstances. The plaintiff is the widow and administratrix of the estate of her late husband, Mr. Ranjit Singh. On or about 6th June 1984 Mr. Singh, in the company of the plaintiff and another member of the family, went to the premises of travel agents trading under the name "Sterling Travel", or at least displaying that name, in Rupert Street, London, W.l. They bought three airline tickets for a flight to the United States for Mrs. Singh and her two children on 25th July 1984. Sadly, on 27th June 1984 Mr. Singh died and his wife and the two children were therefore unable to travel to the United States. The daughter took the tickets back to Sterling Travel on or about 10th July 1984 and, as she said, was assured that the agents would obtain a refund of the price of the tickets for the plaintiff. She never obtained such a refund, although the tickets were never returned to her or not for a long time.
After the tickets had been taken back to Sterling Travel, without any further response from them, repeated enquiries were made and letters were written by the plaintiff and her solicitors, who have done everything possible to try to obtain some satisfaction for her. In the early stages there were some telephone calls in response to these letters to Sterling Travel in Rupert Street. So they were being received. Various temporising assurances were given; but no satisfaction was obtained. As it transpires, Sterling Travel, or whoever was trading in the name of Sterling Travel, then moved away from Rupert Street, and by the time these proceedings had been started they were no longer trading there. The writ was issued on 4th June 1987 addressed to "Sterling Travel (a firm)" at the Rupert Street address. It was posted to Rupert Street on 5th June 1987. Nothing was heard from the defendants and some six weeks later, on 21st July 1987, judgment was entered in default.
Steps were then taken to try to execute the judgment. But on 24th August 1987 a company called United Air Travel Services Limited sent a telex to the plaintiffs' solicitors saying that they had just received the writ. They said that there was no firm called Sterling Travel; there was a company called Atombrook Limited who were, as they said, an associated company of United Air Travel, and Atombrook Limited were the proprietors of Sterling Travel. One can see from the notepaper of this company that although it is prominently headed "Sterling Travel" there is a very small note at the bottom saying "proprietors, Atombrook Limited", whose registered address is stated to be in Goswell Road, E.l. Although in certain circumstances it is possible for a limited company to have an interest in a firm in a way which would appropriately describe them as proprietors of the firm, it is not suggested that this is the present situation. It is accepted that the correct name of the defendants whom the plaintiff intended to sue, and who obviously realised that they were the parties whom the plaintiff intended to sue, should have been "Atombrook Limited, T/a Sterling Travel". One can see immediately that this line of defence by the defendants, unlike the name Sterling Travel in which they chose to trade, no doubt because they thought it sounded and would sell better, is utterly without merit.
The response to the telex from United Air Travel was that the plaintiff's solicitors wrote on 26th August 1987 inviting an application to have the judgment set aside. There were then abortive execution proceedings because the sheriff could not find anybody still trading in the name of Sterling Travel in Rupert Street. Ultimately, on 25th November 1987 the defendants applied to have the judgment set aside on the ground that it had been "irregularly obtained". Accordingly there had been a delay of several months from the time when United Air Travel Services knew about the writ and from the time when the defendants, through United Air Services, had been advised to have the judgment set aside if they wished to do so. In the view of the judge—which is not open to criticism—that was an unreasonably long time in the circumstances.
I should add that the evidence filed on behalf of the defendants is significantly silent on the question as to when anybody concerned with the defendants first became aware of the writ and the judgment. That may well have been substantially before the telex of 24th August. That telex may only have been sent because those associated with Atombrook Limited, and previously with Sterling Travel, or whatever may have been the position, were becoming uncomfortable because of the attempts to enforce this judgment.
There then followed the orders which I have already mentioned. Both the registrar and the judge took the view that the defendants should have the opportunity of raising a defence which they claimed to have, but only on terms of bringing the money into court. The effective issue today is whether the defendants are bound to bring that amount into court if they wish to resist the plaintiff's claim, now amended by describing the defendants in their full correct name.
To see the issues which arise I must refer to a number of provisions of the Supreme Court Practice. 0.2 r.l(l) is as follows:
"Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has by reason of any thing done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein."
Then 0.2 r.l(2):
"Subject to paragraph (3) the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1) and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit."
The first two paragraphs of the Note headed "Effect of Rule" in Note 2/1/1 are in the following terms:
"Effect of rule—The predecessor of this rule (0.59 of R.S.C. 1875; 0.70, r.l. of R.S.C.1883) sought to provide that non-compliance with any of the rules should not of itself render any proceedings void unless the Court should so direct, but that they might be set aside wholly or in part as irregular or amended on such terms as the Court might think fit. Nevertheless the decisions under the rule preserved a distinction between a non-compliance such as rendered the proceedings a nullity (in which case the Court had no discretion but to treat them as a nullity and set them aside) and a non-compliance which merely rendered the proceedings irregular (in which case they remained valid and the Court had a discretion what order to make in the circumstances). It was held, indeed that the Order did not apply to the former class of case but only to the latter.
As a result of the decision of the Court of Appeal in Re Pritchard decd, the present rule was by R.S.C. 1964 substituted for rr.l and 2 of the previous 0.2 and under it the above distinction between nullity and mere irregularity disappears (see Harkness v. Bell's Asbestos & Engineering Ltd.) at any rate in regard to 'a failure to comply with -the requirements of these rules', though it may still be that there are other failures to comply with statutory requirements or other...
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