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union. No letter of claim was written to the de
fendant builder until 25th March, 1965, when the
London office of the union wrote to the defendant.
In September 1965 the union instructed solicitors
to issue a protective writ. The writ was issued on
16th September, 1965 and served on 10th August,
1966. After correspondence between the union and
the defendant's
insurers,
the latter,
in March
1966, repudiated liability. On 22nd March, 1968,
when no statement of claim had been delivered
the defendant took out a summons to dismiss the
action for want of prosecution. On 17th Mary,
1968 Nield J. allowing the defendant's appeal
from the order of the district registrar, dismissed
the action for want of prosecution. The plaintiff
appealed.
In the Court of Appeal Lord Denning MR
stated that a fair trial was virtually impossible
after the length of time that had elapsed. The
delay was inordinate and inexcusable and there
had been prejudice to the defendant. It was not
a case where the court should interfere with the
judge's discretion. It was said that the plaintiff
might have no other remedy against his union or
solicitors. It was not the function of the court to
attribute or apportion blame. It had simply to
inquire whether the delay was inexcusable. The
delay without a statement of claim was inordinate
and inexcusable. Delay both before and after the
issue of the writ had to be considered. The appeal
should be dismissed.
(Rowe v. Tregaskes, 112 SJ. p. 764).
Redundancy—appeal on point of law
A dismissed employee applied to an
industrial
tribunal for determination of a question about
redundancy payment, naming as respondent the
appellant, an individual, who received a copy of
the application but did not enter an appearance
and was not at the hearing. The tribunal unani
mously decided that the employee was entitled to
redundancy payment
from
the appellant. He
appealed on a point of law, seeking to show by
affidavit evidence
that no
reasonable
tribunal
could have concluded that he was the employer,
for the applicant had been employed by a com
pany (which had ceased to carry on business) of
which the appellant was a director and that,
while he was ill, the application had been received
and handed to his accountant who had taken no
steps while the appellant was undergoing opera
tion and postoperative treatment in hospital so
that the application had been unopposed. He
contended that the 'powers of the court hearing
appeals' under RSC Ord. 55, r7 (2), enabled the
court to receive the evidence without which the
point of law could not be made.
A Divisional Court comprising The Lord Chief
Justice, Lord Parker and Melford Stevenson, and
Bridge JJ. held t hat as
stated
in Green v.
Minister of Housing and Local Government
(1967) 2 QB 606, RSC Ord. 66, r7, applied to
many different forms of appeal, and only those
powers of the court could be invoked which were
applicable to the type of appeal in question; on
an appeal on a point of law r7
(2) could not
apply to introduce fresh evidence which might
have been given at the tribunal hearing. Green's
case although a decision under the Town and
Country Planning Act, 1962,was not only bind
ing but also
indistinguishable, and
the appeal
should be dismissed.
(Larner v. Sexton and Another. 112 S.J. 704).
Dismissal of an Action for want of Prosecution
In August 1961
the infant plaintiff, then aged
ten was
injured,
though not seriously
in an
accident involving a car driven by the defendant.
A writ claiming damages
for negligence was
issued on behalf of the plaintiff in September,
1963, and a defence was delivered in November
1963. An order for directions in December, 1963
that the action should be set down within 21
days, was never complied with. By April 1, 1966,
the defendant had paid £500 into court, but the
plaintiff's solicitors on
the advice of counsel,
decided to delay trial until the plaintiff started
work to see what were the full effects of her in
juries. The plaintiff began work in September,
1966, but the action was still not set down for
trial. In April 1968 the defendant obtained an
order for dismissal of the action for want of pro
secution. The plaintiff appealed.
The Court of Appeal (consisted
of Lord Denn
ing M.R., and Diplock and Sachs L.JJ.) allowed
the appeal. They held that although the plaintiff's
solicitors were guilty of prolonged and inexcusable
delay in proceeding with the action, yet the de
fendant had not been seriously prejudiced by the
delay, for she could contest the action as well now
as she could have done earlier and the payment
into court showed that the action was almost cer
tain to succeed; in the circumstances and having
regard to the plaintiff being an infant, it would be
wrong to dismiss the action for want of prosecu
tion, but it should be set down for trial forthwith.
(Marlton
(an
infant) v. Lee-Leviten
[1968]
2 All. E.R. 874).
55