The Gazette 1958-61

Murnaghan J. held that the affidavit was in sufficient to comply with the terms of s. 2 of the Fatal Injuries Act, 1956. On appeal to the Supreme Court, it was held by Kingsmill Moore, O'Daly and Maguire JJ. that (i) Murnaghan J., was entitled to regard the plaintiff's affidavit as insufficient, (2) It was suggested by the Supreme Court that a practical formula where the widow is the plaintiff would be that the affidavit should contain an aver ment to the effect that her solicitor had read para. (&) of s. 2, sub-s. 2, to her and explained the class of persons referred to therein and that to the best of her knowledge and belief the deceased had no such offspring. Per O'Daly J. As a claimant for compensation a widow, if she should know of such offspring, would be bound to disclose it to the Court; but the common case will be that in which there are no such offspring or none to the knowledge and belief of the widow. In such case, when an affidavit falls to be sworn, we see no objection to a formula being employed which will save the widow from embar- rasment. For the employment of the formula it should be required that the plaintiff's solicitor should read to her the provisions of paragraph (£) and explain its meaning. In such circumstances the Court might reasonably accept an averment from the widow that her solicitor had read the paragraph to her and explained the class of persons referred to therein, and that to the best of her knowledge and belief the deceased had no such offspring. In saying this, we are not to be taken as attempting to lay down what inquiries it may be proper for a judge to make in any particular case—although save in exceptional circumstances we see no reason to think why the widow's averment in the terms we indicate might not be considered adequate so far as persons falling within the class mentioned in paragraph (b) are concerned. (O'Mahoney p. E. S. B. (1959) 93 I.L.T.R. 4). An applicationfor a Habeas Corpus has no right to gofrom judge to judge. H., whose application for a writ of habeas corpus directed to the governor of Liverpool Gaol had been refused by two Divisional Courts of the Queen's Bench Division, composed of different judges, made a like application on the same grounds to a Divisional Court of the Chancery Division. Held by the Chancery Division (Vaisey and Harman, JJ.) that the applicant had no right to go from division to division or judge to judge of the High Court of Justice applying for a writ of habeas

corpus, and when once the proper court according to the rules, a Divisional Court of the Queen's Bench Division whose order was the order of the one High Court of Justice, had decided the appli cation, the matter was ended; therefore, the Divisional Court of the Chancery Division had no jurisdiction to entertain the application. Re Hastings (No. 2) ((1958) 3 All E.R. 625) applied. Note: The decision in Re Hastings (No. 2) ((I 95 8) 3 All E.R. 625) distinguished between the positions when, before the Supreme Court of Judicature Act, 1873, application for habeas corpus was made in vacation or in term time. In the former case there was a right to go from judge to judge, as the court was not sitting in bane. It seems that, if that right survives theoretically, it is now ineffec tive because the judge would direct the applicant to apply to the appropriate Divisional Court. Per Vaisey J. The mistake that the applicant made is to assume that the Chancery Division is a separate entity, a separate court, and that either by single judges or by a Divisional Court it can deal with the matter afresh. The applicant uses an expression which, I think, he must suppose to be nattering to us who are sitting here. He says—and I am now quoting from his own affidavit—he has decided to come to a " complete hearing before a hidierto unconnected and impartial Bench. This I seek in the Chancery Court ". I hope that this is an impartial Bench, but it is not an independent Bench. Indeed, as Lord Parker, C.J., has ruled, and with, I think, perfect accuracy, as soon as the Divisional Court of the Queen's Bench Division has come to its conclusion there is an end of the matter. It always has to be remembered that an order is not an order of any particular division of any particular Divisional Court; an order is an order of the High Court. It is beyond my comprehension how we here, judges of the High Court, could be heard to overrule or otherwise interfere with a judgment which was the result of Lord Parker, C.J.'s hearing before his Divisional Court—how we could be heard to say that the conclusion and the order of our own court, the only court which exists, the High Court of Justice, was wrong, and to say that something else should be done. When Lord Parker, C.J., came to a conclusion in the Queen's Bench Divisional Court, acting strictly under the rules, he finally disposed of the application of this present applicant to have a writ of habeas corpus issued to him. I cannot see how this court, or we who are all judges of the High Court, could stultify a decision of the High Court of which we are ourselves constituent parts.