Sterman v E. W. & W. J. Moore
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE CROSS |
| Judgment Date | 17 December 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J1217-1 |
| Date | 17 December 1969 |
| Court | Court of Appeal (Civil Division) |
[1969] EWCA Civ J1217-1
The Master of the Rolls (Lord Denning)
Lord Justice Salmon and
Lord Justice Cross
In The Supreme Court of Judicature
Court of Appeal
Appeal (by leave of the Court of Appeal) by plaintiff from order of The Honourable Mr. Justice Mars-Jones on the 19th March, 1969.
Mr. C.F. DEAN, Q.C., and Mr. Christopher SMITH (instructed by Messrs, Vizard, Oldham Growder & Cash, agents for Messrs. Stevens Son & Pope) appeared on behalf of the Appellant Plaintiff.
Mr. TIMOTHY PRESTON (instructed by Messrs. Thompson & Co.) appeared on behalf of the Respondent Defendant.
We need not trouble you any more, Mr. Dehn. We give leave to appeal in both oases and proceed to determine the appeals.
In May 1965 Mr. Sterman was engaged in painting inside a hospital at Cheltenham. He fell from a trestle and was injured. In July 1965 he went to solicitors and made a claim against his employers. It was rejected by their insurance company. Later on he determined himself to bring an action in person. He came himself to the offices of the High Court. He was assisted, as so many litigants in person are, by the staff here. He endorsed his writ in these words: "The Plaintiff's dale is for £500 damages for loss of earnings from May 1965 and for special damages and costs."
Note that the writ was defective. Itdid not state the cause of action. It did not state "for negligence or breach of statutory duty".
Mr. Sterman issued the writ on the 8th August, 1967 - well within the period of limitation. He served it a few months later on his employers. They gave it to their solicitors, who entered - let it be noted - an unconditional appearance to that writ. They told his that they would help hint as far as they legitimately could with the statement of claim. He did not take advantage of their offer. Instead he went to solicitors on his own account. But I as afraid time had gone by. He did not go to these solicitors till May 1968. (It was then Just over three years from the accident.) The solicitors obtained legal aid on his behalf. They saw that the endorsement of the writ might be defective. So they applied to the Master for leave to amend that writ. They wished to insert words to state the cause of action, namely, that he was claiming damages for negligence or breach of statutory duty. The Master refused to give him leave, and the Judge, Mr. Justice Mrs-Jonas, confirmed that decision. Both Master and Judge thought that it was unnecessary to amend the writ, because the defect could be cured by delivering a good statement of claim. Pontin v. Wood (1962 1 Q.B. 594) seemed to be clearauthority for so doing.
So, in due course, the plaintiff served a statement of claim in proper form, drafted by Counsel, setting out the facts and claiming damages for negligence and breach of statutory duty. But then the defendants changed their tune. They discovered that the Rules of Court had been altered: and they said that there was a new Rule which prevented the defect in the writ being cured by the statement of claim. It is Order 18, Rule 15, sub-rule 2, which says that:
"A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned."
It seems clear from that new Rule that the writ must mention a cause of action. The defendants said that this writ did not mention one. It simply said: "The plaintiff's dale is for £500 damages for loss of earnings", without mentioning a cause of action. Hence the statement of claim did not comply with Order 18, Rule 15(2) and ought, so said the defendants, to be struck out. The Master accepted that argument and struck out the statement of claim. On appeal Mr. Justice Bridge affirmed the decision. So the plaintiff was left with nothing. He had issued a writ which was said to be a good writ, even though it was defective. But he could not serve any statement of claim because his writ did not mention a cause of action. So his writ was useless to him.
If this decision is right, it steams that the rule-makers decision have, by a side-wind, reversed the beneficial decision of Pontin v. Wood. They have allowed the plaintiff to be defeated by a technicality of the worst description.
The first question is whether the indorsement on the writ was defective or not. Order 6, Rule 2(1) says that the writ must be indorsed "with a concise statement of the nature of theclaim made or the relief or remedy required in the action begun thereby." The old rule was in the same terms. But the old Rules contained fours which showed that the endorsement had to state the cause of action, e.g., damages for negligence or breach of duty. The new rules do not entrain the freeboot I am inclined to think that it is still necessary to state the cause of action. The indorsement should state the nature of the claim made and the relief or retsedy required. The word " or" should be read as "and". At any rate, even if it is not necessary to state the cause of action, it is very desirable to do so. I am prepared, therefore, to approach this case on the footing that the writ did not outplay with the Rule. It was defective in that it said simply: "damage for loss of earnings" without stating the cause of action, viz., negligence and breach of statutory duty. That defect did not render the writ a nullity. It was at most an irregularity, and the irregularity was waived when the defendants entered an unconditional appearance to that writ.
Although the irregularity in the writ was waived, nevertheless the statement of claim may be bad. So I turn to the second question. It is whether the statement of claim was bad or not. It seems pretty plain that it did not comply with the new Order 18, Rule 15(2). It could not possibly comply with it because there was no cause of action mentioned in the writ. Nevertheless, this failure to comply was again only an irregularity. It was not a ground for striking out the statement of claim, but only for setting it aside. And then only if...
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