Smalley v Robey & Company Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE HOLROYD PEARCE,LORD JUSTICE DAVIES
Judgment Date06 December 1961
Judgment citation (vLex)[1961] EWCA Civ J1206-1
CourtCourt of Appeal
Date06 December 1961

[1961] EWCA Civ J1206-1

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Holroyd Pearce

Lord Justice Davies

Between:
Frederick George Smalley
Plaintiff (Respondent)
and
Robey & Company Limited
Defendants (Appellants)

MR. B. CAULFIELD, Q.C., MR. B. J. APPLEBY and MR.J.R.V. McAULAY, (instructed by Messrs. Geoffrey Coombs & Co., Agents for Messrs. G. Keogh & Co. (Nottingham)), appeared on behalf of the Appellants (Defendants).

MR. W. G. WINGATE (instructed by Messrs. Water-house & Co., Agents for Messrs. Andrew, Race, Hill & Mason (Lincoln)) appeared on behalf of the Respondent (Plaintiff).

LORD JUSTICE HOLROYD PEARCE
1

: This is an appeal by the Defendants from a Judgment of Mr. Justice Edmund Davies whereby he reversed the Order of the Nottingham District Registrar, who set aside the service of a Writ on the Defendants on the ground that it was defective in form.

2

Mr. Caulfield has argued the case very clearly and forcefully. The question is how far a Writ can be defective before a Court will set it aside, and he contends that in this case the Plaintiffs' errors have taken them beyond the line where a Writ can be said to be in compliance with the Rules.

3

The cause of action is for negligence or breach of Statutory duty arising out of an accident on the 19th July, 1957, at the Defendants' factory in Lincoln. That cause of action would be Statute barred on the 19th July, 1960. The Plaintiff's Solicitors waited until the 13th July, 1960, before issuing a Writ. The Writ that they then issued would expire, unless renewed, on the 12th July, 1961. They waited until the 12th July, 1961, before serving it. On the same day they served a notice of change. On the 19th July the Defendants entered a conditional appearance and took out a summons to set aside the Writ on the ground of certain defects. The District Registrar set it aside, but the learned Judge restored the Writ.

4

The procedure in issuing a Writ is this. The Solicitor makes out his original Writ together with a copy of it. The original Writ is sealed at the Office, and the copy is filed. The Solicitor then takes the original Writ with him and serves on the Defendant a copy of that original. In this case the copy so served had defects. The original Writ and the copy filed at the office were correct and had no defects.

5

The provisions with regard to serving a Writ are that it must be served "in the manner in which personal service is now made" by virtue of Order IX Rule 2. We have been referred to the notes to that Rule. The words "is now made" deal with the situation in 1883. Mr. Caulfield in his researches has looked into "The Practice of the Courts at King's Bench and Common Pleas" by Tidd and tells us that there are various cases in which there have been technical mistakes in Writs, but he does not seek to rely on them because in those days the matter was far more technical than it is now.

6

However, there are certain things which according to the Rules "shall be" done. Order V Rule 3 says: "In all cases where a defendant neither resides nor carries on business within the district out of the registry whereof a Writ of summons is issued, there shall be a statement on the face of the writ of summons that such defendant may cause an appearance to be entered at his option either at the District Registry or at the Central Office, or a statement to the like effect."

7

Order II Rule 3 says: "The writ of summons for the commencement of an action shall, except in the cases in which any different form is hereinafter provided, be in one of the Forms Nos. l, 2, 3 and 4 in Appendix A, Part I."

8

Order II Rule 1 states: "Every writ of summons shall be indorsed with a statement of the nature of the claim made" and so on and "shall specify the Division of the High Court to which it is intended that the action should be assigned."

9

The...

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