The Gazette 1961

Supreme Court of Judicature (Consolidation) Act,

1925, defined an action as " a civil proceeding

commenced by writ or in such other manner as may

be prescribed by rules of court." The originating

summons was a creature of the rules of the Supreme

Court. The issue of proceedings must be issued

with the seal of the issuing office.

If proceedings

were issued in the wrong office the defect could be

cured with a statute or the rules of the Supreme

Court gave the power to transfer to the right office.

There was no such power in the present case and

the proceedings were a nullity. The appeal should

accordingly be dismissed.

Lord Justice Danckwerts concurring said that

an originating summons required the seal of the

Central Office. The originating summons in this

case had no such seal and had no more application

to the matter to be decided than a dog licence. The

defect was incurable as there were no operative

proceedings to be transferred to the Central Office.

An interesting feature in this case was a very

strong dissenting

judgment delivered by Lord

Denning. Lord Denning said that the High Court

had ample jurisdiction to correct this type of error

and should do so.

The defendants were not

prejudiced and had never raised the matter. He

thought that the originating summons could surely

be removed from the District Registry to London

under order LXX rule i (already referred to). The

only mistake made by the plaintiff's solicitor was to

overlook an obscure rule for which he might be

excused. There was no rule which prevented the

plaintiff, for example, from issuing a writ instead of

an originating summons.

If the proceedings had

been commenced by writ the writ could have been

issued in the District Registry and would have been

good.

If a writ were a nullity why should an

originating summons be a nullity ?

In his opinion

the issue of an originating summons in the District

Registry was not a nullity. However, he said, his

brethren were of a different opinion. The proud

boast of Lord Justice Bowen that it was no longer

possible for an honest litigant in H.M. Supreme

Court to be defeated by a mere technicality, slip or

mistaken step in litigation could now no longer be

made.

In his conclusion, " we have not followed

the handwriting of our predecessors. We have

marred our copybook with blots and the more is

the pity of it." (Re Pritchard deceased,

The Guardian,

February I5th, 1963.)

Intervention

in fatal injuries action by widow after

settlement in favour of dependant

The Court dismissed

the appeal of George

Frederick Williams and British Road Services Ltd.

against an order of Mr. Justice Megaw on June 6th,

1962. The judge had permitted a widow to intervene

in an action under the Fatal Accidents Acts on

behalf of a dependent child of the widow's deceased

husband, notwithstanding

that

the proceedings

under those Acts had been stayed after a settlement

had been made between the defendants and the

infant's solicitors.

Leslie Watkin was fatally injured in a road accident

near Rugeley, which was caused by the negligence

of two lorry drivers, the employees of the defendants.

The first defendant was George Frederick Williams,

of Cash Lane, Eccleshall, and the second defendant

was British Road Services Ltd.

The deceased left two dependants, his widow

Barbara Watkins, who was with him at the time of

the accident and was injured in it, and an illegitimate

daughter, Sheila Anne Cooper, who at the time of

the accident was about 10 years old.

On March ist, 1960, an action was begun on

behalf of the infant plaintiff under the Fatal Accidents

Acts, 1846 to 1959, for damages caused by the

negligence of the defendants' employees in killing

the deceased. The action was settled by the solicitors

acting for the infant plaintiff and by the solicitor

acting for the defendants, and, on May :8th, 1960,

the settlement was approved by the Registrar of the

Birmingham District Registry on the terms that in

consideration of a sum of £450 paid by the defen

dants for the benefit of the infant, all further

proceedings in the action were stayed.

On the very next day the solicitors for the widow

wrote to the defendant solicitors stating that the

widow too had a claim under the Fatal Accidents

Acts, 1846 to 1959. The defendant solicitors replied

that the proceedings under the Acts had already been

issued and terminated under the Acts and that

therefore the widow's claim was barred as she had

not been a party to the one action allowed by the

Acts, namely the infant's proceedings.

The widow then applied to the Birmingham

Registry Office for leave to intervene in the infant's

action against the defendants and to have the order

of May 18th, 1960, set aside.

She argued that the proceedings were null and

void and should be set aside because of the irregular

ities in the infant's proceedings. For instance, it was

said that among other things the infant was not

stated to appear on the writ and on the record as

suing by her mother, and that no declaration had

been made specifying either the person in whose

behalf the action was brought or the nature of the

claim as required by section 4 of the Act of 1846.

The widow wished to amend the writ so as to make

it clear she had a claim. She would claim on behalf

of herself and the infant plaintiff, or alternatively

the infant plaintiff would claim in her own behalf,

and in that of the dependent widow. The Registrar