The Gazette 1961 - 64

in an action under the Fatal Accidents Acts on behalf of a dependent child of the widow's deceased husband, notwithstanding that the proceedings under those Acts had been stayed after a settlement had been made between the defendants and the infant's solicitors. Leslie Watkin was fatally injured in a road accident near Rugeley, which was caused by the negligence of two lorry drivers, the employees of the defendants. The first defendant was George Frederick Williams, of Cash Lane, Eccleshall, and the second defendant was British Road Services Ltd. The deceased left two dependants, his widow Barbara Watkins, who was with him at the time of the accident and was injured in it, and an illegitimate daughter, Sheila Anne Cooper, who at the time of the accident was about 10 years old. On March ist, 1960, an action was begun on behalf of the infant plaintiff under the Fatal Accidents Acts, 1846 to 1959, for damages caused by the negligence of the defendants' employees in killing the deceased. The action was settled by the solicitors acting for the infant plaintiff and by the solicitor acting for the defendants, and, on May :8th, 1960, the settlement was approved by the Registrar of the Birmingham District Registry on the terms that in consideration of a sum of £450 paid by the defen dants for the benefit of the infant, all further proceedings in the action were stayed. On the very next day the solicitors for the widow wrote to the defendant solicitors stating that the widow too had a claim under the Fatal Accidents Acts, 1846 to 1959. The defendant solicitors replied that the proceedings under the Acts had already been issued and terminated under the Acts and that therefore the widow's claim was barred as she had not been a party to the one action allowed by the Acts, namely the infant's proceedings. The widow then applied to the Birmingham Registry Office for leave to intervene in the infant's action against the defendants and to have the order of May 18th, 1960, set aside. She argued that the proceedings were null and void and should be set aside because of the irregular ities in the infant's proceedings. For instance, it was said that among other things the infant was not stated to appear on the writ and on the record as suing by her mother, and that no declaration had been made specifying either the person in whose behalf the action was brought or the nature of the claim as required by section 4 of the Act of 1846. The widow wished to amend the writ so as to make it clear she had a claim. She would claim on behalf of herself and the infant plaintiff, or alternatively the infant plaintiff would claim in her own behalf, and in that of the dependent widow. The Registrar 86

Supreme Court of Judicature (Consolidation) Act, 1925, defined an action as " a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court." The originating summons was a creature of the rules of the Supreme Court. The issue of proceedings must be issued with the seal of the issuing office. If proceedings were issued in the wrong office the defect could be cured with a statute or the rules of the Supreme Court gave the power to transfer to the right office. There was no such power in the present case and the proceedings were a nullity. The appeal should accordingly be dismissed. Lord Justice Danckwerts concurring said that an originating summons required the seal of the Central Office. The originating summons in this case had no such seal and had no more application to the matter to be decided than a dog licence. The defect was incurable as there were no operative proceedings to be transferred to the Central Office. An interesting feature in this case was a very strong dissenting judgment delivered by Lord Denning. Lord Denning said that the High Court had ample jurisdiction to correct this type of error and should do so. The defendants were not prejudiced and had never raised the matter. He thought that the originating summons could surely be removed from the District Registry to London under order LXX rule i (already referred to). The only mistake made by the plaintiff's solicitor was to overlook an obscure rule for which he might be excused. There was no rule which prevented the plaintiff, for example, from issuing a writ instead of an originating summons. If the proceedings had been commenced by writ the writ could have been issued in the District Registry and would have been good. If a writ were a nullity why should an originating summons be a nullity ? In his opinion the issue of an originating summons in the District Registry was not a nullity. However, he said, his brethren were of a different opinion. The proud boast of Lord Justice Bowen that it was no longer possible for an honest litigant in H.M. Supreme Court to be defeated by a mere technicality, slip or mistaken step in litigation could now no longer be made. In his conclusion, " we have not followed the handwriting of our predecessors. We have marred our copybook with blots and the more is the pity of it." (Re Pritchard deceased, The Guardian, February I5th, 1963.) Intervention in fatal injuries action by widow after settlement in favour of dependant The Court dismissed the appeal of George Frederick Williams and British Road Services Ltd. against an order of Mr. Justice Megaw on June 6th, 1962. The judge had permitted a widow to intervene