Trow v Ind Coope (West Midlands) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SALMON |
| Judgment Date | 02 May 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0502-4 |
| Date | 02 May 1967 |
| Court | Court of Appeal (Civil Division) |
[1967] EWCA Civ J0502-4
The Master of the Rolls
(Lord Denning)
Lord Justice Harman and
Lord Justice Salmon
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From Mr Justice Blain
MR G. SLYNN (instructed by Messrs Waterhouse & Co., Agents for Messrs Melson & Steele, Kidsgrove) appeared as Counsel for the Appellant.
MR BRIAN GIBBENS, Q. C. and MR S. TUMIM (instructed by Messrs Preston Lane-Claypon & O'Kelly, Agents for Messrs Hollinshead & Moody, Stoke-on-Trent) appeared as Counsel for the Respondents.
Every practitioner knows that a writ must be served within twelve months of the date on which it was issued. But how is that twelve months to be calculated? What is the last day - the very last day - on which it can be served? That is the question we have to decide today. It is very like a period of limitation. Every practitioner knows in personal injury cases that a writ must be issued within three years of the date on which the cause of action accrued. But how is that three years to be calculated? What is the last day - the very last day - on which the writ can be issued? The answer to each of these questions depends, no doubt, on the precise wording of the enactment in each case. But the wording is not nearly so precise as it could be or should be. It does not say whether the time is to be "inclusive" of the day of the date or "exclusive" of it. The two questions are so much inter-related that I propose to consider both of them, especially as the facts here illustrate both.
On the 11th September, 1962, at Kidsgrove Mrs Trow was crossing the yard of the Queen's Head Inn when she fell and hurt herself. If she wished to sue for damages, she had to bring the action within three years. The Statutes of Limitation say that an action for personal injuries shall not be brought "After the expiration of three years from the date on which the cause of action accrued", see Section 2(1) of the Limitation Act 1939, as amended by Section 2(1) of the Limitation Act 1954. The cause of action accrued on the 11th September, 1962. What was the last day of three years " from that date"? Was it the 10th September, 1965, or the 11th September, 1965? Mr Justice Channell would have said it was the 10th September, 1965, see Gelmini v. Moriggia and anr., 1913, 2 King's Bench, page 549. Mr Justice Havers would have said it was the 11th September, 1965, see Marren v. Dawson Bentley & Co. Limited, 1961, 2 Queen's Bench, page 135. I think that Mr Justice Havers was right, far reasons which I will give later. The last day for issuing awrit was the 11th September, 1965.
THE ISSUE OF TEE WRIT:
The solicitors for Mrs Trow issued the writ in time. They issued a writ on the 10th September, 1965, one day before the last day. They issued it against the brewers who owned the Queen's Head Ian and their manager. They issued it out of the Hanley District Registry. The Registrar stamped on it the Court Seal and noted on it the time "3.5 p.m." on the 10th September, 1965.
THE SERVICE OF THE WRIT:
If the plaintiffs wished to serve that writ on the defendants, they had to serve it within twelve months of the date of issue -10th September, 1965. What was the last day of the twelve months? Was it the 9th September, 1966, or the 10th September, 1966? It was very important for the solicitors for Mrs Trow to make sure of the day: because if they let the twelve months expire without serving the writ, that was the end of it: for there would be very little chance of getting it renewed, see Baker v. Bowketts Cakes Limited,. 1961, 1 Weakly Law Reports, page 861.
THE NOTE ON THE WRIT:
The writ itself stated the last day for service. On the face of the writ there was is large letters the words: "Witness, Gerald Baron Gardiner, Lord High Chancellor of Great Britain, the tenth day of September, 1965". Immediately below those words there was this note: "This writ may not be served more than twelve calendar months after the above date unless renewed by order of the Court".
That was an official note which was contained in the prescribed form of writ and was of equal force to a Rule of Court, see Section 225 of the Judicature Act 1925, Order 6, Rule 1, Appendix A, Form 1. Everyone agrees that, on the wording of that note, the last day for service was the 10th September, 1966.
The solicitors for Mrs Trow issued the writ in time, according to the Note. On Saturday, 10th September, 1966, at one minute before midday, they left a copy of the writ at the registered office of the brewers in Burton. At eleven minutes before one o'clock they served the manager personally at the Queen's Head Inn.
THE RULE OF COURT:
The defendants admit that, according to that Note, the writ was served in time. But they point to a Rule of Court which, they say, gives a different result. It is one of the New Rules which came into force on the 1st October, 1964. It is Order 6, Rule 6(1), which says: "For the purpose of service, a writ…is valid in the first instance for twelve months beginning with the date of its issue". The defendants say that under that rule, in calculating the twelve months, you must include the day of the date of issue. You must, therefore, include the 10th September, 1965, in the twelve months. You thus arrive at the 9th September, 1966, as the last day for service of the writ. They say that the Note on the writ is wrong and should be rejected. The Judge accepted that contention for reasons which are reported in 1966, 3 Weekly Law Reports, page 1300. So according to the Rule the service here was a day too late.
In this situation it is necessary to analyse the wording of Order 6, Rule 8(1) in some detail. This I proceed to do. No help is to be gained from Order 3, Rule 2, because no act is "required" to be done. Nor is anything to be gleaned by looking at the old Rule and the old Note. They were differently worded with great precision and gave rise to no difficulty, see Holman v. Elliott (1944) 60 Times Law Reports, page 394.
DATE:
It was suggested for the plaintiffs that the word "date" should be construed as meaning "time", so that the twelve months ran from 3.5 p.m. on the 10th September, 1965, to 3.5 p.m. on the 10th September, 1966: and that the service was good asit was before that time. In support of this suggestion, reference was made to the Shorter Oxford Dictionary, which gives one of the meanings as "the precise time at which anything takes place".
I cannot accept this suggestions When we speak of the date on which anything is done, we mean the date by the calendar; such as: "The date today is the 2nd May, 1967". We do not divide the date up into hours and minutes. We take no account of fractions of a date. If authority were needed for so obvious a proposition, it can be found in the judgment of Lord Mansfield in Pugh v. Duke of Leeds (1977) Cowper at page 720. Speaking of the date of delivery of a deed, he said: "What is 'the date'? The date is a memorandum of the day when the deed was delivered: in Latin it is 'datum': and 'datum tali die' is delivered on such a day. Thus in point of law there is no fraction of a day: it is an indivisible point, 'Date' does not mean the hour or the minute, but the day of delivery: and in law there is no fraction of a day".
Applying these words, we must take no account of the time, 3.5 p.m. We must regard the writ as issued on the 10th September, 1965, just as if that date was an indivisible point. The whole day of the date of issue must either be included or excluded in calculating the twelve months. If it is included, then, in point of fact, the period for service is lees than twelve months by a few hours. If it is excluded it is more than twelve months by a few hours. Which is it to be? I may add that a similar situation arises with the period of limitation. The "date" on which the cause of action accrues is either included or excluded in the three years.
"WITH" or "FROM"
It was suggested that the words "beginning with" have a different meaning from the words "beginning from", in this ways: In calculating twelvemonths beginning with the date of issue, you include that date in the twelve months (as was done in Hare v. Gocher 1962, 2 Queen's Bench, page 641): whereas incalculating twelve months beginning from the date, you exclude it (as was done in Marren v. Dawson Bentley & Co. Limited., 1961, 2 Queen's Bench, page 135).
I acknowledge that those cases warrant this distinction between the prepositions "with" and "from". But it is far too subtle for my liking. It is one of those nice distinctions in which lawyers delight. They are out of touch with the common man. If a man contracts to build a house in twelve months beginning with the date when the first sod is turned, it is just the same as if he said twelve months beginning on or from that date. You may well gay that that date is to be included in either case: but you cannot say that it is included in one case and excluded in the other. For this purpose "with", "from" or "on" a date are equivalent expressions. It has been so held. First in a case decided by Holt C. J. in 1707 called Seignorett v. Noguire, reported in 2 Lord Raymond and recited more fully by Lord Mansfield in 2 Cowper at page 722. By a contract a partnership was to continue for four years to begin from the date of the contract. The declaration described the contract as four years to begin with the date of the contract. It was held that there was no variance. "The whole Court held that to aver that a contract was to commence 'with the day of the date' was the same thing as to aver that it commenced 'from the day of that date". (As it happens, in that case they held that the day of the date was to be included). Secondly, in Side botham v....
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