A lecture note on the effect of failing to comply with the High Court Rules 2007.
If there is non – compliance with these rules then it does not necessarily nullify the proceedings. The court may allow the mistake to be rectified and impose costs for the mistake. A distinction has to be made between nullity and irregularity. Nullity is incurably bad and nothing can be done to rectify it. Irregularity on the other hand is something that is bad, but can be rectified. Order 2 rule 1(1) Failure to comply with any rules either in the beginning or at any stage of the proceedings shall be treated as an irregularity and same shall not nullify the proceedings, document, judgment etc. This rule was stated in the Court of Appeal case of Re Prichard (decd) 1963 Ch. 502 which states the distinction between irregularity and nullity. Lord Up John LJ at page 883 opined 3 situations were proceedings may become nullities as follows;
1. Proceedings which ought to have been served but have never come to the notice of the
2. Proceedings which have never started at all owing to some fundamental defect in issuing the proceedings; and
3. Proceedings which appear to be duly issued but fail to comply with a statutory requirement Lord Denning in his dissenting judgment stated at page 876 “True it is that the will not be allowed to introduce new cause of action or substitute a fresh case or rectify errors of substance but he will be allowed to correct technical defects. If the plaintiff.................has made a technical slip in his procedure then he will be allowed to rectify the defect if it can be done without injustice to the defendant”. “A failure to comply with the requirements of these rules”, though it may still be that there are other failures to comply with statutory requirements or other improprieties so serious as to render the proceedings in which they occur and any order made therein a nullity. Authorities, taken as a whole show that the rule above should be applied liberally in order, so far as is reasonable and proper to prevent injustice being caused to one party by mindless adherence to technicalities in the rules of procedure; but Leal v Dunlop Bio – Processes International Ltd (1984) 1 W.L.R 874, where the courts illustrated situations in which the court adopts a less liberal attitude where service out of the has been effected irregularity.
By Order 2 rule 1 (2) the court may use its inherent jurisdiction to set aside either in whole or in part the irregularity or allow such amendment as to such terms as to costs as it thinks just to make in the circumstances. After the expiry of , the writ is bad and the order for substituted service will be set aside (Bernstein v Jackson 1982 2 ALL ER 806). In the case of RusseL v Kombe (1962) SLLR at page 19-22 Bankole Jones Ag CJ at page 20 opine "that the court has discretionary power to prevent technical objections from defeating a Plaintiff's claim where a mistake has been made" And entering before expiry of the period prescribed by the rules and accordingly the defendant is entitled to have the judgment set aside ex debito justitiae, Charlesworth v Focusmulti Ltd 1993 The Independent, March 15 CA.
Deutsche Gesellscaft Fuer Technische
Zusammenarbent (GTZ) GMBH, GTZ v Bangura CC 493/07 Judgment delivered
in June 2008 Judgment Number: 4 D.B. Edwards, J.A writ of summons in this action and all subsequent proceedings be set aside ex debito justitiae for non compliance with order 4 rule 1 of the High Court rules 2007. Thirdly, that the claim was a liquidated claim but that the plaintiff entered an Judgment in default of appearance all of which he stated constituted non compliance with the rules or an irregularity which called for the Judgment of 18th JULY 2007 and all subsequent proceedings to be set aside ex debito justitiae Setting aside the default Judgment dated 18th July 2007 for non compliance or irregularity is refused.
Note however that there is no power to remedy failures of a more fundamental kind. Thus the requirement that the plaintiff be in existence at the date of the commencement of the proceedings is a basic principle of law rather than a requirement of the rules. If an action is brought by a non – existence plaintiff cannot apply to have another person joined as co – plaintiff (Dubai Bank Ltd v Galadari (No.4) (1990)
The Times, February 23) and see further Harrison v Touche Ross (a firm) (1995)
The Times, February 14 CA. The Court cannot treat a writ as issued months before or after it was in fact issued.
If a writ is issued but served wrongly there is irregularity with the service and not writ, if the service of a writ is held to be irregular then the judgment would not be valid. The overriding expediency of litigation is to save costs, speedy trial and hear both parties so as to solve the issues between (among) the parties. If you are the counsel for the party who is affected by the irregularity, you should escalate the irregularity; the effects on your client, effect it would have on your reasonable persons. But if you were the counsel who caused the irregularity, minimize the effect and if not too damaging accept the error made and undertake for costs. But the irregularity of non compliance should not be waited for too long before being brought to the attention of the court, in the case of Potion and Another v Wood QBD 1962 594 held “the court could set aside a writ and service thereof because it was not brought within a reasonable time … the defendant’s delay is fatal to his . It was taken out almost four months after the defective writ was served.”
Though the issue should have been raised promptly, solicitor as a first step should rectify the irregularity as soon as it was brought to his attention. If the plaintiff took a fresh step after his default, it would construe as acknowledging the irregularity. A fresh step will constitute any step taken after being aware of the irregularity. Prompt reaction after knowledge of the irregularity is of essence. The party who took the fresh step may not be allowed to renege because it will be regarded as if had waived the irregularity. Note, it should however to be taken here that, the entering of appearance simplicita by party shall not constitute a waiver Order 12 rule 15. The order gives power to amend and provides that non compliance with the rules shall not render the proceedings void unless the court directs. The tenor of the order shows that it is directed to the curing of that which is capable of cure, to save rather than destroying.
Metroinvest Ansalt and Others v Commercial Union Assurance Co Plc 1985 2
ALL ER 318 it was held that “once a party to litigation has been guilty of a failure to comply with rules which has not been waived either expressly or by implication by the opposite side, the court has a general discretion under Order 2 rule 1 (2) to make such consequential orders dealing with the proceedings as it thinks fit. That discretion is to be exercised judicially and the court has to look at all the circumstances of the case, including the questions whether the other party has already been prejudiced by the irregularity and if the irregularity is one which the court could and should rectify and whether it can do so to the other party … from the moment a step in proceedings is tainted by irregularity through failure comply with the rules the irregular step or document remains irregular inter parties until the matter has been brought before the court and the court decided in which way to exercise its jurisdiction conferred by Order 2 rule 1(2)
The grounds of objection must be stated in the summons or notice of motion see Moss v Malings 1886 33 Ch. D 603, Re Sandes 1919 147 L.T Jo 212 Order 2 rule 2 (1)
(2)
In the case of Winifred v Harris S.C. APP. NO.1 OF 78 MNC: SLSC 1 Judgment delivered February Tejan, J.S.C stated that “I am of the view that the application made by summons instead of by a notice of motion rendered the order voidable. The order was a mere irregularity, and cannot in my opinion be said to be a nullity”.