The Gazette 1967/71

appeals' under RSC Ord. 55, r7 (2), enabled the court to receive the evidence without which the point of law could not be made. A Divisional Court comprising The Lord Chief Justice, Lord Parker and Melford Stevenson, and Bridge JJ. held t hat as stated in Green v. Minister of Housing and Local Government (1967) 2 QB 606, RSC Ord. 66, r7, applied to many different forms of appeal, and only those powers of the court could be invoked which were applicable to the type of appeal in question; on an appeal on a point of law r7 (2) could not apply to introduce fresh evidence which might have been given at the tribunal hearing. Green's case although a decision under the Town and Country Planning Act, 1962,was not only bind ing but also indistinguishable, and the appeal should be dismissed. (Larner v. Sexton and Another. 112 S.J. 704). Dismissal of an Action for want of Prosecution In August 1961 the infant plaintiff, then aged ten was injured, though not seriously in an accident involving a car driven by the defendant. A writ claiming damages for negligence was issued on behalf of the plaintiff in September, 1963, and a defence was delivered in November 1963. An order for directions in December, 1963 that the action should be set down within 21 days, was never complied with. By April 1, 1966, the defendant had paid £500 into court, but the plaintiff's solicitors on the advice of counsel, decided to delay trial until the plaintiff started work to see what were the full effects of her in juries. The plaintiff began work in September, 1966, but the action was still not set down for trial. In April 1968 the defendant obtained an order for dismissal of the action for want of pro secution. The plaintiff appealed. The Court of Appeal (consisted of Lord Denn ing M.R., and Diplock and Sachs L.JJ.) allowed the appeal. They held that although the plaintiff's solicitors were guilty of prolonged and inexcusable delay in proceeding with the action, yet the de fendant had not been seriously prejudiced by the delay, for she could contest the action as well now as she could have done earlier and the payment into court showed that the action was almost cer tain to succeed; in the circumstances and having regard to the plaintiff being an infant, it would be wrong to dismiss the action for want of prosecu tion, but it should be set down for trial forthwith. (Marlton (an infant) v. Lee-Leviten [1968] 2 All. E.R. 874). 55

union. No letter of claim was written to the de fendant builder until 25th March, 1965, when the London office of the union wrote to the defendant. In September 1965 the union instructed solicitors to issue a protective writ. The writ was issued on 16th September, 1965 and served on 10th August, 1966. After correspondence between the union and the defendant's insurers, the latter, in March 1966, repudiated liability. On 22nd March, 1968, when no statement of claim had been delivered the defendant took out a summons to dismiss the action for want of prosecution. On 17th Mary, 1968 Nield J. allowing the defendant's appeal from the order of the district registrar, dismissed the action for want of prosecution. The plaintiff appealed. In the Court of Appeal Lord Denning MR stated that a fair trial was virtually impossible after the length of time that had elapsed. The delay was inordinate and inexcusable and there had been prejudice to the defendant. It was not a case where the court should interfere with the judge's discretion. It was said that the plaintiff might have no other remedy against his union or solicitors. It was not the function of the court to attribute or apportion blame. It had simply to inquire whether the delay was inexcusable. The delay without a statement of claim was inordinate and inexcusable. Delay both before and after the issue of the writ had to be considered. The appeal should be dismissed. (Rowe v. Tregaskes, 112 SJ. p. 764). industrial tribunal for determination of a question about redundancy payment, naming as respondent the appellant, an individual, who received a copy of the application but did not enter an appearance and was not at the hearing. The tribunal unani mously decided that the employee was entitled to redundancy payment from the appellant. He appealed on a point of law, seeking to show by affidavit evidence that no reasonable tribunal could have concluded that he was the employer, for the applicant had been employed by a com pany (which had ceased to carry on business) of which the appellant was a director and that, while he was ill, the application had been received and handed to his accountant who had taken no steps while the appellant was undergoing opera tion and postoperative treatment in hospital so that the application had been unopposed. He contended that the 'powers of the court hearing Redundancy—appeal on point of law A dismissed employee applied to an