The plaintiff’s solicitors had applied to a district registrar for leave of the court for the purposes of the Limitation Act 1963 when they ought to have made the application to a judge in chambers. The district registrar ordered that Section 2(1) of the Limitation Act 1939 should not afford a defence to the proposed action for damages, and a writ was duly issued. A judge in chambers held that this order was a nullity, and made no order. A different judge in chambers dismissed an application to rectify the order and have it treated as valid.
Held: The appeal succeeded. The court considered the different ways in which objection could be taken to proceedings according to whether the source of the objection was that it was a nullity or an irregularity.
Diplock LJ said: ‘Thomas William Harkness, retired boiler-lagger, if he had followed, as I have no doubt he has, the intricacies of the interlocutory proceedings in the case, must have thought that `the law is an ass’. I am not sure that this judgment will change his opinion, but at any rate he will not feel it is such an unjust ass as he must have felt before. It was to remedy just this kind of injustice that the new RSC Ord 2 r 1 was made.’
Lord Denning MR said that the new rule should be construed widely and generously to give effect to its manifest intentions: ‘This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. It can at last be asserted that ‘it is not possible for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation.”
and ‘I think that any application to the court, however informal, is a ‘proceeding’. There were ‘proceedings’ in being at the very moment that the plaintiff made his affidavit and his solicitor lodged it with the court.’
Judges:
Lord Denning MR, Diplock LJ, Russell LJ
Citations:
[1967] 2 QB 729, [1966] 3 All ER 843
Statutes:
Rules of the Supreme Court Ord2 R2, Limitation Act 1963 2(1)
Jurisdiction:
England and Wales
Citing:
Cited – Pontin v Wood CA 1962
The writ had been issued just before the expiration of the relevant limitation period in a defective form in that it was endorsed merely with the words ‘the plaintiffs’ claim is for damages for personal injuries’. The judge in chambers held that the . .
Cited by:
Cited – Johnson, Regina (on the Application Of) v Attorney General Admn 29-Jun-2005
. .
Cited – Hannigan v Hannigan CA 18-May-2000
The widow appealed against strike out of her claim under the 1975 Act. It had been filed with several mistakes and only just in time.
Held: Her appeal succeeded. Though the defects were real and to be deplored, the paperwork contained all the . .
Cited – Charlesworth and Others v Focusmulti Ltd and Others CA 15-Mar-1993
Judgment had been entered by the plaintiff in default of defence, but before the time limit for filing a defence had expired. Such a judgment was fatally flawed, and could not be cured. The judgment had to be set aside without any consideration of . .
Cited – Faircharm Investments Ltd v Citibank International Plc CA 6-Feb-1998
An irregular judgment had been entered. A claim was made after the proceeds of a life policy secured under a mortgage had been wrongly paid out after the mortgage was redeemed by a third party.
Held: The appeal was dismissed. The so-called . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Limitation
Updated: 30 April 2022; Ref: scu.230927