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Defective endorsement on writ: summons to set aside.
An appeal against an order of a trial judge setting
aside a writ for nullity on the grounds that it did not
disclose a cause of action was allowed by the Court
of Appeal in England consisting of Holroyd Pearce
and Davies L. JJ. The plaintiff suing for damages
as a result of a road accident had issued a writ on the
i8th March 1958, the endorsement of which con
tained only the words " the plaintiff's claim is for
damages for personal injuries ". The defendant on
the 4th August 1961, took out a summons for an
order setting aside the writ. The District Registrar
dismissed the summons on the i6th August. The
plaintiff filed a statement of claim on the iyth August
alleging full particulars of negligence and the defen
dant entered an appearance. On appeal from the
Registrar's order Edmund Davies J. held that the
writ was a nullity and he set it aside. His order was
appealed from by the plaintiff and it was held that
the writ was not a nullity on the following grounds :
1. The defendant was at all times aware of the
nature of the claim against him and he was
therefore not prejudiced by reason of the fact
that negligence was not alleged in the original
endorsement of claim.
2. Under the provisions of the relevant statute of
limitation, the Law Reform (Limitation of
Actions, etc.) Act 1954, the statement of claim
which would have cured the defective writ
could have been delivered at any time up to the
13th October, 1961. The judge by setting the
writ aside on the izth October had prevented
the plaintiff from curing this defect. Holroyd
Pearce L. J. in his judgment stated that this was
the third successive case in which the court had
had to deal with difficulties of plaintiffs through
delay in issuing writs. They should issue their
writs in good time and then continue to nego
tiate if they so desired.
These cases should
serve as a warning to plaintiffs that such delay
was likely to lead them into serious trouble and
expense.
(Pontin&anr.
v.
Wood.)
A// E.R.—
1962—1—294).
Solicitors' indemnity policies.
In Davies
v.
Hosken (1937 3 All E.R. 192) and
Goddard and Smith
v.
Frew (1939 All E.R. 358.)
Underwriters of indemnity policies were exonerated
from liability to indemnify the insured where the claim
made arose from misappropriation or misapplication
by a clerk of clients' funds held.
The form of standard policy was amended sub
sequently
to exclude specifically claims against
insured persons brought about or contributed to by
the dishonest, fraudulent, criminal or malicious act
or omission of any person employed by the insured,
but an extension of the policy to include indemnity in
respect of claims brought about or contributed to by
the dishonesty of the employees of the insured
became available upon payment of an additional
premium for the extra cover.
It is understood that underwriters of the standard
form of solicitors' indemnity policy hold the view
that the extension of the policy to include " indemnity
against liability for claims brought about or con
tributed to by the fraud or dishonesty of a clerk or
other employee" is still ineffective
to provide
indemnity against liability in respect of any fraud
ulent or dishonest misappropriation or misapplic
ation of clients' funds by a clerk where the claim
made in respect thereof is capable of being framed as
a claim for debt, e.g. for money had and received.
This interpretation of the policy will probably be
tested in the courts, but, pending a decision as to
the correct interpretation of the policy, members are
advised that full protection against claims of this
nature may not be available unless a fidelity policy in
respect of their employees is also in force.
(Law Institute Journal
(Australia), December 1961,
page 430.)
OBITUARY
MR. JOHN D'OYLY BATTLEY, Solicitor, died on the
2jth January, 1962 at Sir Patrick Dun's Hospital,
Dublin.
Mr. Battley was admitted in Easter Sittings, 1932
and practised at 31 Molesworth Street, Dublin as
senior partner in the firm of Messrs. Moore, Kiely
& Lloyd, 31 Molesworth Street, Dublin up to his
retirement in 1959.
MR. NOEL M. J. PURCELL, Solicitor, died on 3ist
January,
1962
at St. Michael's Hospital, Dun
Laoghaire, Co. Dublin.
Mr. Purcell served his apprenticeship with the late
Mr. Daniel Purcell, 58 Dame Street, Dublin, was
admitted in Trinity Sittings, 1919 and practised at
16 Dawson Street, under the style of Messrs. Daniel
Purcell & Son.
MR. WILLIAM T. McMENAMiN, Solicitor died on 3rd
February, 1962 at Ballybofey, Co. Donegal.
Mr. McMenamin served his apprenticeship with
the late Mr. William Kelly, Letterkenny, Co. Donegal,
was admitted in Michaelmas Sittings, 1919 and
practised at Ballybofey, Co. Donegal as senior partner
in the firm of Messrs. W. T. McMenamin & Son.