The Gazette 1961 - 64

The facts were that Alfred Pritchard died on March I4th, 1961, leaving an estate of £914 and a will that made no provision for his widow. Probate was granted to the executors therein named on loth April, 1961. Under the Inheritance (Family Provisions) Act, 1938, the widow has six months from the date of the grant of probate to take proceedings in the High Court to secure reasonable provision for herself out of the estate. The widow instructed a solicitor to take such proceedings and he prepared an originating summons in the High Court in which he named his client his plaintiff and the executors of the will as defendants. The summons was accepted and sealed in the District Registry and dated October 9th, 1961. The docu ment was accepted by the executors who entered an appearance in the District Registry and by the consent of both parties the residuary legatees were also joined and entered an appearance in the District Registry. On January nth, 1962, the District Registrar stated that he thought the proceedings had been wrongly issued and he doubted whether he had any power to deal with the matter owing to the following rules of the Supreme Court, Order LIV. Rule 4 (f) provides that an application to the High Court under the above-mentioned Act shall be made in the Chancery Division by originating summons interpartes. Rule 4 (&) provides that an originating summons shall be sealed in the Central Office. On March 6th, 1962, the plaintiff's solicitors took out a summons for the removal by the District Registrar of the case to the Central Office. The application was refused on the ground that the proceedings were a nullity and Wilberforce J. on appeal held with the Registrar. The plaintiff relied on order LXX rule i of the rules which provides that " non-compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the court of a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular or amended, or otherwise dealt with in such manner and upon such terms as the court or judge shall think fit." Lord Justice Upjohn said that order LXX was a wide rule to which the court should give a wide construction but if the proceedings were a nullity the rule was inapplicable. Order LXX applied to all defects in procedure unless the defect was fundamental " to the proceedings ". There were several classes of nullity and one of these was a proceeding which had never started at all owing to some fundamental defect on issuing the proceed ings. The proceedings in the present case were proceedings of this nature. Section 225 of the

barred by the effect of section 2 of the Limitation Act, 1939? and accordingly failed. The trial judge had found that the disease had been caused by reason of the employer's breach of statutory duty, but that as the causes of action had accrued in each case more than six years before the issue of the writs the actions failed. The evidence in the case was that a person who was susceptible to pneumoconiosis and inhaled noxious dust over the years would have suffered substantial injury to his lungs long before his injury could be discovered by any means yet known to medical science. Even if the workman were able to have x-ray photographs at regular intervals a large part or even the whole of the three year period of limitation would have elapsed before they could even with the best possible advice instruct the raising of an action. The present law requires their lordships to dismiss the appeal and it was suggested that some amendment of the law was urgently necessary. All the members of the court expressed regret at the decision which had to be come to and Lord Reid said that it appeared to him to be unreasonable and unjustifiable in principle that a cause of action should be held to accrue before it was possible to discover any injury, and that if the matter were covered by the common law he would have held that a cause of action ought not to be held to accrue until either the injured person had discovered the injury or it would be possible for him to discover it if he took reasonable steps. The present question depended on the Limitation Act, 1939, and section 26 of the Act appeared to make it impossible to reach the result which he had indicated. The necessary implication from the section was that where fraud or mistake were not involved time began to run whether or not the damage could be discovered. The mischief in the present case could only be prevented by further legislation. (The Times, January iyth, 1963.) Note.— The legal position is exactly the same in this country. The corresponding sections in the Statute of Limitations, 1957, are sections 71 and 72, the wording of which follows section 26 of the English Act. Proceedings issued in the wrong office of the court are a nullity and not a procedural defect capable of being remedied The Court of Appeal in England dismissed an appeal by the plaintiff against a judgment of Mr. Justice Wilberforce upholding the dismissal by the District Registrar of the Pontyprid District Registry of a summons brought by the plaintiff to remove her case to the Central Office of the High Court in London.