15 MARCH 1963, Page 9

Letter of the Law

The Rigidity Boys


'theyou posted a letter with a town address in 'the country section of a letter box, you would be outraged if the Post Office authorities refused to deliver the letter or returned it to you, telling you that you hadn't posted it at all. Something no less outrageous occurred in a recent case before the Court of Appeal, entailing con- sequences far more serious for the litigant.

A widow in Pontypridd found upon her hus- band's death that she had been left nothing in his will. There is an Act of Parliament which provides that, if the widow makes an applica- tion within six months of probate being taken out, she may ask the Court to make for her the provision which her husband withheld. The estate was a small one amounting to some £914. A few days before the six-month period for making the application expired, the widow's solicitors went to the Pontypridd District Registry and there issued a summons; that is to say, the officer at the Registry stamped it with the seal of the High Court of Justice and the solicitors armed with this document supposed—as did everybody else in the case including the Registrar himself—that the application was now under way.

A few months later the Registrar noticed that according to the rules of procedure the summons should have been issued from the Central Office in London and stamped there with the appro- priate seal. He informed the widow's solicitors, who then sought to put the irregularity right by simply asking for the cause to be removed to London. The District Registrar, however, held that the proceedings were not merely irregular but a nullity, and his decision was confirmed by a judge of the High Court. This put an end to the widow's application. If the proceedings were a nullity, she would have to start again. But she could not do that because the six-month period within which to start had long ago expired. So she appealed to the Court of Appeal, in the hope that her technical slip could be rectified.

What took place in the Court of Appeal could be described as a legal morality play. On the one side the Master of the Rolls, Lord Denning, stirred by the injustice of a litigant being shut out from the judgment seat because she had the wrong stamp on a document; on the other, two Chancery Judges, who, while deprecating the result of their decision, held firmly that the docu- mentary error was fundamental and irreparable.

Lord Denning considered that although the applicant had failed to comply with a technical rule, the Court had ample power under the same set of rules to put the error right. 'This widow,' he said, 'commenced a known genuine case before the time limit expired. There was a technical defect in the procedure but it could be rectified without the least injustice to the executors.. . . The only mistake which the widow's solicitor made was to overlook an obscure rule for which he might well be excused. The solicitors on the other side overlooked it as well. And I'm sure most of us would have done so too. On techni- calities of procedure such as these we rely on the officers of the Court to keep us straight. But

here the officer himself did not notice the error. He sealed the summons and issued it. Hence all this trouble. When an officer of the Court itself makes a mistake, the consequences should not be visited on the unfortunate litigant but should be remedied by the Court itself.'

But the views of Lord Justice Upjohn and his fellow Chancery Judge were to prevail. In effect they held, quoting case-law, that the birthplace of the proceedings was a matter of fundaments[ importance and so the fact that the document was stamped by an official in Pontypridd instead of by an official in the Strand rendered every- thing the applicant had done a complete nullity. The Court, they held, was powerless to come to her aid, because this was no mere irregularity. It was a fundamental error.

No system of law can be a good one if at the end of a particular dispute right-minded people are left with a strong sense that an unnecessary injustice has taken place. But there has always been this dialogue in our law between two forces, the one calling for justice to be done in a par- ticular case, the other insisting that rules must not be tampered with—hard cases make bad law. But very hard cases cause bad feeling; and there is no question that the public, while respecting our legal system, feel that lawyers are involved in a game which has little or no connection with justice, and lawyers (although quick to snipe at bureaucrats) do little to discourage this view.

It has happened many times in the history of our law. The lawyers became so rigidly devoted to the rules that the latter began to have a life of their own and to dominate legal thinking and feeling. A new court had to be created, called a Court of Equity, to remind the Courts of Law that persons rather than rules matter and that laws are man-made. The present Chancery Court is the heir to that tradition; yet Lord Denning was, ironically, the only non-Chancery judge sit- ting on the Pontypridd case. This is by no means the first case recently in which the rigidity boys of Chancery have had their own way against the common lawyers.

Lord Denning's greatest virtue (needless to say there is much head-shaking amongst the hard- cases-make-bad-law school) is that he has a heart and thinks the legal system should have one too. His final indignant comment on the decision of the Court sums up this ignoble episode: 'My [fellow judges] think the defect is fatal, that the widow must be driven from the judgment seat without a hearing. I greatly regret that this should be so. Quite recently the proud boast of Lord Justice Bowen had been recalled, "It may be asserted without tear of contradiction that it is not possible in the year 1887 for an honest liti- gant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation." The present case shows that in this year, 1963, the assertion can no longer be made. We have not followed the handwriting of our predecessors. We have marred our copybook with blots, and the more's the pity of it.'