Williamson v Rider
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE DANCKWERTS,LORD JUSTICE WILLMER |
| Judgment Date | 22 March 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0322-2 |
| Date | 22 March 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J0322-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Willmer and
Lord Justice Danckwerts
Mr ARON OWEN (instructed by Messrs Geo. J. Dowse & Co.) appeared on behalf of the Appellants (Plaintiffs).
Mr D. P. CROOM-JOHNSON, Q. C. and Mr G. C. RYAN (instructed by Messrs Amphlett & Co.) appeared on behalf of the Respondent (Defendant).
I will ask Lord Justice Danckwerts to deliver the first Judgment.
This case has an extraordinary history, and all about £100!
The case arises out of a document alleged to be a promissory note, dated the 9th January, 1956, but apparently signed on the 14th August, 1956. The action was begun in the High Court on the 18th March, 1957, by a specially endorsed writ, in which the claim of the Plaintiff, Samuel James Garrod, was for the sum of £100 under a promissory note of the date which I have mentioned. Proceedings were taken under Order 14 of the Rules of the Supreme Court, and on the 10th April, 1957, the Defendant was given leave to defend. On the 11th April, 1957, a request was made by the Defendant for particulars, and on the 29th April, 1957, particulars were given by the Plaintiff, stating that the promissory note was made on the 14th August, 1956, at the office of a company called Clerkenwell Cartons Limited and that the Plaintiff had lent sums of money from time to time exceeding £100, but that on the date mentioned the Plaintiff had agreed with the Defendant to accept £100 in settlement, the same to be paid on or before the 31st December, 1956. On the 13th May, 1957, pursuant to an Order under Order 28, Rule 2, of the Rules of the Supreme Court, the claim was amended so as to include an alternative claim under a compromise between the Plaintiff and the Defendant made on or about the 14th August, 1956, and alternatively upon an account stated. On the 21st May, 1957, a request was made by the Defendant for further particulars of the Statement of Claim, and on the same date a Defence was put in, (1) denying any indebtedness, (2) alleging that the document was not a promissory note and was not signed by the Defendant, and that if the document bore the Defendant's signature, it was not placed thereon for the purpose ofcreating a promissory note or any acknowledgment, and that there was not any typescript on or visible on the document. Further defences were that the Defendant did not make the compromise or agree any account, and that if the document was a promissory note, the Plaintiff gave no consideration; and finally, that the Plaintiff did not pay to the Defendant sums to the amount alleged or at all.
On the 21st June, 1957, an Order was made by the Master ordering delivery within fourteen days of the particulars requested and ordering that the action be remitted to the Westminster County Court. The Order did not give any directions as to what was to happen if the Plaintiff failed to deliver the particulars.
The proceedings apparently then went to sleep. On the 28th June, 1960, the Plaintiff, Samuel James Garrod, died. On the 29th August, 1961, the Defendant gave notice under the County" Court Rules for the executors of Samuel James Garrod to be substituted as Plaintiffs, and for leave to sign judgment dismissing the action in default of further proceedings in the action. On the 29th September, 1961, an Order was made by the Registrar substituting the executors (who are the present Plaintiffs) as the Plaintiffs in place of the deceased Plaintiff and giving them liberty to restore the case to the list within twenty-one days, with a direction that in default the action should be struck out. On the 11th October, 1961, an Order was made for the hearing of the action on the 11th November, 1961, and on that date the case came on for hearing before His Honour Judge Blagden at the Westminster County Court.
Counsel for the Defendant applied for an Order striking out the amended claims from the Statement of Claim under Order 7, Rule 9, paragraph (2), of the County Court Rules, and the learned Judge made ah Order striking out thealternative claims which were added by amendment, as mentioned. From the note of the Judgment which was signed by the learned Judge it is plain that he purported to make this Order under Order 7, Rule 9, as asked. The learned Judge then proceeded to consider the claim upon a promissory note, and upon the terms of the document in question the learned Judge decided that it was not a promissory note. Accordingly, he dismissed the action. From these decisions of the County Court Judge the Plaintiff appeals, and there is a cross-notice.
As I have mentioned, the Defendant's application to the County Court Judge and his decision was based on the provisions of Order 7, Rule 9, of the County Court Rules, and nothing else. That Rule seems to me to be totally inapt to deal with a case which has been remitted to the County Court from the High Court, where there has been an Order by the Master in the High Court already, directing delivery of the particulars which are the subject of the complaint.
Order 7, Rule 9, is in these terms: "(1) If a defendant requires further particulars - (a) he may within eight days of the service of the summons on him, inclusive of the day of service, file a notice specifying what further particulars he requires and within the same time deliver a copy thereof to the plaintiff, and (b) the plaintiff shall, within five days of the service of the notice, file the further particulars and within the same time deliver a copy thereof to the defendant. (2) If the notice is not complied with, the Court, before or at the trial, if satisfied that the defendant is thereby prejudiced in his defence, may - (a) order further particulars to be filed and delivered; and (b) stay all proceedings until the order has been obeyed, and order the action to be dismissed unless the order is obeyed within such further time as the Court may allow". Then there is a provision applying it to a counterclaim, with which we are notconcerned.
That Rule seems clearly to contemplate an application in the County Court for particulars, and the consequences mentioned in paragraph (2) follow upon an application of that character. Where the particulars have already been ordered in the High Court upon an application and request by the defendant (which must have been superseded by the Master's Order) the procedure under Order 7, Rule 9, of the County Court Rules seems quite inappropriate. In my view, the County Court Judge had no power to make any Order under Order 7, Rule 9, and no question of his discretion there under can arise. Furthermore, in my opinion, the County Court Judge's Order, which he purported to make, did not comply with the terms of Order 7, Rule 9, paragraph (2). This appears to give to the Judge power to dismiss the action (nothing is said about striking out) only if the Judge gives further time for the Order for particulars to be obeyed and the Order is not obeyed within that time.
It should be mentioned that under Order 10 (which deals with cases transferred to the County Court) there is a paragraph, numbered (6), which allows a plaintiff to demand further particulars of Defence and Counterclaim, but this is obviously not applicable to particulars required from a plaintiff. It appears that there is no other Order dealing with the subject in the County Court Rules.
However, in this Court, Counsel for the Defendant put forward alternative contentions based on Section 103 of the County Courts Act, 1959, and the inherent jurisdiction of the Court. Section 103 deals with cases which are not covered by the County Court Rules and is in these terms: "In any case not expressly provided for by or in pursuance of this Act, the general principles of practice in the High Court may be adopted and applied to proceedings in aCounty Court". Section 77, which provides for procedure in the County Court in a transferred action as if it had been commenced originally in the County Court, does not seem to provide any assistance in the present case.
Section 103 applies the general principles of practice in the High Court (whatever that may mean), and I think it is accepted that it enables a County Court to exercise the inherent jurisdiction of the Court to dispose of, for instance, actions which are an abuse of the process of the Court. What exactly are, in a given case, the general principles of practice in the High Court is not entirely clear. It has been held that individual rules of the High Court are not necessarily included, but only "guiding principles": McCreagh v. Frearson, (1921) 126 Law Times, 601. However, it was accepted, I think, that Rules 7 and 27 of Order 19 of the Rules of the Supreme Court came within the ambit of principles of practice. Rule 7 provides as follows: "A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars, may in all cases be ordered, upon such terms, as to costs and otherwise, as may-be just". Rule 27 says this: "The Court or a Judge may at any stage of the proceedings order to be struck out or amended any matter in any endorsement or pleading which may be unnecessary or scandalous or which may tend to prejudice embarrass, or delay the fair trial of the action". In the Annual Practice, however, it is stated that in cases where the Order for particulars does not give directions striking out a pleading or dismissing an action in case of default in the delivery of the particulars ordered, an application is made under the provisions of Order 30, Rule 7, (which is the general provision relating to the summons for directions and notices under it) for a...
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