An originating summons seeking relief was accepted and sealed in a local district registry. It ought to have been sealed in the Central Office of the Royal Courts of Justice. Wilberforce J had held that the originating summons was a nullity and that all steps taken under it were void.
Held: The appeal failed (Lord Denning dissenting). RSC Order 70 Rule 1 gave the court no power to cure proceedings which were a nullity. The court discussed Craig -v- Kanssen: ‘part of the difficulty is that the phrase ‘ex debito justiciae’ had been taken as equivalent to a nullity, but, with all respect to Lord Greene’s judgment in Craig v Kanssen, it is not. The phrase means that the [defendant] is entitled as a matter of right to have it set aside.’
Upjohn LJ reviewed the case law and said: ‘I do not think that the earlier cases or the later dicta upon them prevent me from saying that, in my judgment, the law when properly understood is that Ord. 70 applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make it a nullity. The court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Ord. 70 when justice can be done as a matter of discretion, still bearing in mind that many cases must be decided in favour of the party entitled to the complain of the defect ex debito justitiae. Lord Denning in MacFoy pointed out that a useful test was whether the defect could be waived.’
He went on to distinguish between defects in proceedings which could and should be rectified by the Court and those which were so fundamental that they made the whole proceedings a nullity. These included (i) proceedings which ought to have been served but which have never come to the notice of the defendant at all; (ii) proceedings which have never started at all owing to some fundamental defect in issuing them; and (iii) proceedings which appear to be duly issued but fail to comply with a statutory requirement.
Lord Denning (minority) said: ‘The only true cases of nullity that I have found are when a sole plaintiff or a sole defendant is dead or non-existent and I would like to see the word ‘nullity’ confined to those cases in the future.’
Judges:
Upjohn LJ, Danckwerts LJ
Citations:
[1963] 1 Ch 502, [1963] 1 All ER 873
Jurisdiction:
England and Wales
Citing:
Criticised – Craig v Kanssen CA 1943
There had been a failure to serve process where service of process was required. The result was that the order made based upon that process was irregular.
Held: In the exercise of its inherent jurisdiction, the Court was entitled to set it . .
Cited by:
Cited – Strachan v The Gleaner Company Limited and Stokes PC 25-Jul-2005
PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence . .
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
Updated: 01 May 2022; Ref: scu.237251