The Gazette 1961 - 64

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.