Vezier (Née Lebreton) v Bellego and Five Others

CourtRoyal Court
JudgeLe Marquand, Judicial Greffier:
Judgment Date15 February 1994
Date15 February 1994
Le Marquand, Judicial Greffier:

R.G. Day for the plaintiffs;

P. de C. Mourant for the first and second defendants;

P.S. Landick for the third, fourth, fifth and sixth defendants.

Cases cited by counsel:

(1) Ascherberg, Hopwood & Crew Ltd. v. Casa Musicale Sonzogno Di Pietro Ostali S.N.C., [1971] 1 W.L.R. 1128; [1971] 3 All ER 38.

(2) Associated Leisure Ltd. v. Associated Newspapers Ltd., [1970] 2 All E.R. 754.

(3) Baker (G.L.) Ltd. v. Medway Bldg. & Supplies Ltd., [1958] 3 All E.R. 540.

(4) Bowden (E.M.)'s Patents Syndicate Ltd. v. Herbert Smith & Co., [1904] 2 Ch. 86.

(5) Ketteman v. Hansel Properties Ltd., [1987] 2 W.L.R. 312.

(6) Leavey (J.) & Co. Ltd. v. George H. Hirst & Co. Ltd., [1944] K.B. 24.

(7) Liptons Cash Registers & Business Equipment Ltd. v. Hugin (G.B.) Ltd., [1982] 1 All E.R. 595.

(8) Moss v. Malings (1886), 33 Ch. D. 603.

(9) Tildesley v. Harper (1878), 10 Ch. D. 393.

Legislation construed:

Fatal Accidents (Jersey) Law 1962, art. 3: The relevant terms of this article are set out at page 78, lines 1-9.

Royal Court Rules 1992 (R. & O. 8509), r.6/5: The relevant terms of this rule are set out at page 79, lines 26-33.

r.8/6: The relevant terms of this rule are set out at page 78, lines 21-26.

r.8/7: The relevant terms of this rule are set out at page 78, lines 27-36.

Rules of the Supreme Court, O.20, r.5: The relevant terms of this rule are set out at page 80, lines 19-28.

Text cited:

The Supreme Court Practice 1993, vol. 1, para. 20/5-8/7, at 372.

Tortfatal accidentsmultiple actionsby Fatal Accidents (Jersey) Law 1962, art. 3, only one action may be brought following deceased's deathif two actions erroneously brought by different parties, may add parties of one action to other and withdraw second actionby Royal Court Rules 1992, rr. 8/6 and 8/7, actions not void per se

Civil Procedurepartiesplaintiffmay amend pleadings to alter capacity in which plaintiff suesmay thereby introduce new cause of action or defeat limitation defence if new cause of action arises out of same facts as that originally pleaded

The plaintiffs brought two actions against the defendants under the Fatal Accidents (Jersey) Law 1962 consequent upon the death of the deceased.

Following the death of the deceased in an accident, the plaintiffs brought two actions against the defendants: in the first, the plaintiff was the widow and executrix of the deceased; and in the second, the plaintiff was a former wife of the deceased suing on behalf of a minor child, a child of their marriage, as guardian ad litem.

On discovering that by bringing these actions, they had contravened art. 3 of the Fatal Accidents (Jersey) Law 1962 (by which only one action could be brought in respect of the death of the deceased), the plaintiffs applied for the first action to be amended so that the child could be added as a dependant of the deceased for the purpose of the claim; this would render the second action unnecessary. By that time, more than six months had elapsed since the deceased's death and art. 3 also provided that, if no action had been brought within this period by an executor, such action could be brought by any person for whose benefit it could be brought.

They submitted that art. 3 was a "rule of practice" within the meaning of r.8/6 of the Royal Court Rules 1992 and that non-compliance with such a rule could not by r.8/6 render proceedings void per se; alternatively, the second action had by contravening art. 3 been brought "by a means other than that required in the case of such proceedings' and by r.8/7(1) of the Rules was not void merely by virtue of such contravention.

Some of the defendants (who were defendants to both actions)...

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