The Gazette 1944-46

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.

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 Irish case on this point is Magee v. Hastings (28 L.R.Ir. 288) in which Andrews, J. held that he had 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

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