In Firman v Ellis [1978] writs had been issued within the limitation period, but then allowed to lapse. The Court of Appeal held that Section 2D gave a wide discretion to the court which was not limited to a residual class of case or to exceptional cases.
The judgment presents interesting case law identifying that a void order originates from either a fundamental mistake or defect to proceedings or by violation of the rules of natural justice.
Denning LJ:
“Void or voidable
This raises a nice question as to the status of the order of Mr. Registrar Morris Jones on July 11, 1973, when he gave leave to amend and join the Smiths as defendants. Was it a nullity and void ab initio? For in that case everything that followed from it was also a nullity and void: and no action had been ” commenced ” against the Smiths. Or was it good when it was made and only voidable? For in that case everything that followed was good until it was set aside: and an action would have been .” com- menced” against the Smiths and then dismissed by Rees J. in a “final”
“I think that the order of July 11, 1973, was a nullity and void ab initio for two reasons: (i) it was made under a fundamental mistake in that the registrar was told and believed that the Smiths agreed to it, when they had not: and (ii) it was made contrary to the rules of natural justice, because no notice of appointment had been given to the Smiths’ solicitor. Such failures make the order a nullity and void ab initio: see Anisminic D Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147, 171 by Lord Reid, and at p. 195 by Lord Pearce”
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