Service Outside Rules – Irregular not a Nullity
The act of delivery of a statement of claim in the long vacation of the Supreme Court of Sierra Leone was only voidable and not void; it was only an irregularity and not a nullity.
Lord Denning said: ‘The defendant here sought to say, therefore, that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable. The distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.’ No Court had ever attempted to lay down a decisive test for distinguishing between nullities and irregularities, but a useful one was whether, if ‘the other side waived the flaw in the proceedings or took some fresh step after knowledge of it . . [c]ould he afterwards in justice complain of the flaw?’ If the other side could complain despite the subsequent step, the ‘flaw’ was a nullity.
Lord Denning
[1961] UKPC 49, [1962] AC 152, [1961] 3 All ER 1169
Bailii
Commonwealth
Litigation Practice
Updated: 19 November 2021; Ref: scu.445332
