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 writ was a nullity which had not been cured by a proper statement of claim served within the limitation period.
Held: The appeal against strike out was allowed. The court said that under the new rules it could make a distinction between a procedural irregularity and a nullity. The writ was defective, but not a nullity, and it could be cured by delivery of a proper statement of claim even after the expiry of the limitation period.
Davies LJ: ‘The real point of Mr Caulfield’s argument, however, is the submission that to allow a plaintiff to cure a defective writ by the delivery of a statement of claim after the expiry of the appropriate period of limitation would be to destroy a right which has accrued to the defendant; and he relied on such cases as Weldon v Neal, Marshall v London Passenger Transport Board and Batting v London Passenger Transport Board in support of his argument. In those cases, however, the plaintiffs were seeking the leave of the court to do something to the detriment of the defendants which, without such leave, the plaintiffs had no right to do. I agree with Mr Caplan’s submission that the position is quite different when a plaintiff has the right without any leave of the court to take the step which is necessary to cure any defect in his proceeding.’
Holroyd Pearce LJ said: ‘The courts will not, except in special circumstances, allow amendments that will take away a defence that has arisen under the statute . . They will not add a new cause of action or allow a plaintiff to substitute a fresh case . . But I do not accept that they should therefore refuse any normal aid which would be given as of course under Order 70 if no question of limitation arose – aid which is directed not to setting up a new cause of action or a new case, but to regularising the procedure of a known genuine case commenced before the time limit expired but containing technical defects.’ and, quoting Bowen LJ: ‘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.’
Judges:
Holroyd Pearce LJ, Davies LJ
Citations:
[1962] 1 QB 594, [1962] 2 WLR 258, [1962] 1 All ER 294
Jurisdiction:
England and Wales
Cited by:
Cited – Harkness v Bell’s Asbestos and Engineering Limited CA 1966
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) . .
Cited – Brophy and Another v Dunphys Chartered Surveyors CA 2-Mar-1998
Before striking out pleadings as showing no proper cause of action, the court should allow a suggested amendment, which presented a better and an arguable case. . .
Cited – Smith v Henniker-Major and Co CA 22-Jul-2002
The claimant appealed the strike-out of his claim for professional negligence against the respondent solicitors. He claimed that the solicitors had acted in breach of their duty, and he then called a company meeting. Only he attended. He mistakenly . .
Cited – Brennan v Brighton Borough Council CA 24-Jul-1996
Challenges to a leave to appeal having been given should only to be commenced if properly justified. They are rarely likely to succeed. . .
Cited – Brennan v Brighton Borough Council CA 7-May-1997
Where there was still a possibility of a claim for restitution, a decision to strike out the action on the basis that there was no extant cause of action, was wrong. . .
Cited – Brennan v Brighton Borough Council CA 23-Apr-1998
. .
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 . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 30 April 2022; Ref: scu.230928