|Neutral Citation No.  NICA 62||Ref:||GIL9982|
|Judgment: approved by the Court for handing down||Delivered:||16/5/2016|
|(subject to editorial corrections)*|
GILLEN LJ (delivering the judgment of the court)
"Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in conjunction on with any proceedings, there has by reason of anything done or left and done been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings."
"The authorities do establish one or two classes of nullity such as the following. There may be others though for my part I would be reluctant to see much extension of the classes.
(1) Proceedings which ought to have been served but have never come to the notice of the defendant at all. This of course does not include cases of substituted service or service by filing in default or cases where service has properly been dispensed with."
That is far removed from the present case where it is not a question of service because these proceedings had clearly been served and indeed affidavits had been filed by all the parties including the appellants, but simply a matter of the appellant not being informed of the date of hearing.
Secondly, Lord Justice Upjohn went on to say:
"Proceedings which had never started at all owing to some fundamental defect in issuing the proceedings."
Again one could not conceive of proceedings more far removed from the instant case where of course they had been properly started and served etc.
Thirdly, Lord Upjohn said "proceedings which appear to be duly issued but fail to comply with a statutory requirement" and once again that falls outwith the instant case.