The Gazette 1944-46

59 / 144

STATUTES 1943.
BOUND volumes of the Statutes of the Oireachtas
for the year 1943 are now on sale and may be had
from the Government Publications Sale Office,
8/4 College Street, Dublin, or through any book
seller. Price 15/6, post free.
CURRENT TOPICS.
Renewal of Originating Summons.
UNDER O. 8, r. 1 of R.S.C., 1905 no original writ
of summons shall be in force for more than twelve
months from the day of the date thereof, including
the day of such date. By O. 64, r. 7, the Court or
a judge is given power to enlarge or abridge the
time appointed by the rules for doing any act
or taking any proceeding, and time may be
enlarged although the application has not been
made until after the expiration of the time
appointed or allowed. In two recent English cases
the courts considered the corresponding English
rules in connection with applications to renew
writs of summons claiming damages under Lord
Campbell's Act. In each case the writ had been
issued within the period of twelve months allowed
by that Act but had not been served, and the
application for renewal of the writ had been
made after the expiration of the ensuing twelve
months' period. In the earlier case, Holman v.
George Elliott & Co. Ltd., (60 T.L.R. 394) the
action arose out of the death of the plaintiff's
husband on 9th October, 1941. Proceedings
under Lord Campbell's Act were instituted on
7th October, 1942, two days before the expiration
of the period of twelve months given by the Act.
Owing to neglect on the part of a clerk in the
employment of the plaintiff's solicitors the writ
was not served until 7th October, 1943, which was
one day after the expiration of twelve months
from the issue of the writ. An application was
made to the Court by the plaintiffs for an order
extending the writ under the English order
corresponding to O. 64, r.7. The application was
granted by the King's Bench Division and
affirmed by the Court of Appeal. In the subse
quent case, Battersby and others v. Anglo-
American Oil Company Ltd and others (61 T.L.R.
13) the facts were almost precisely similar. The
action was brought under Lord Campbell's Act,
the writ was issued shortly before the expiration
of the statutory period of twelve months, but not
served within the ensuing twelve months, and
the plaintiff was compelled to rely on the success
of an application to have the writ extended in
order to prevent his remedy from becoming
statute barred. The application was granted by
the High Court but the order of the High Court
was reversed on appeal. The Court of Appeal,
disapproving of the decision of the same Court
in Holman v. Elliott, held that there is a con
sistent line of authorities showing that, as a
general rule of conduct, Courts will not grant
amendments or extensions where by doing so
they would alter the existing rights of the parties.
This is the rule in regard to amendments of plead
ings, and the same principle applies with greater
force to applications to allow the renewal of a
writ, where the granting of the application
would deprive the defendant of the benefit of
the Statute of Limitations. The only reported
Iris n this point is Magee v. Hastings
(28 288) in which Andrews, J. held that
he no jurisdiction to renew a writ where the
debt was barred by the Statute of Limitations.
In the latest English case it was held that the
Court has a jurisdiction but one that ought not
to be exercised in such circumstances.
Application for Direction on Plaintiff's Case.
IF counsel for the defendant applies at the end
of case for the plaintiff for a direction in his
client's favour, on the ground that the evidence
for the plaintiff has not made out a prima facie
case for the relief sought, and asks for the judge's
ruling on his submission does he thereby lose the
right to call evidence for the defendant, if his
application is unsuccessful ? In Alexander v.
Rayson (1936, K.B. 169) the English Court of
Appeal disapproved of the practice of asking for
such directions in cases being tried by a judge
without a jury on the ground that a judge who
is trying both the law and the facts should not
be asked to express any opinion upon the evidence
until the evidence is completed. It would be
unheard of to ask a jury at the end of the plain
tiff's case to say what verdict they would be
prepared to give if the defendant called no
evidence, and the Court saw no reason why a
judge should be asked such a question, where he
and not a jury had to determine the facts. In
Laurie v. Raglan Building Co., Ltd. (1942, I.K.B.,
152) after the evidence for the plaintiff had con
cluded counsel for the defendants submitted that
there was no case for him to answer. The Court
held with him and dismissed the action. The
plaintiff appealed and the Court of Appeal, in
giving judgment allowing the appeal, stated that
the proper course of action for the trial judge in
connection with the defendant's application for
a direction would have been to refuse to rule on
it unless counsel for the defendant elected to call