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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Chelfat v Hutchinson 3G UK Ltd [2022] EWCA Civ 455 (06 April 2022) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/455.html Cite as: [2022] EWCA Civ 455, [2022] WLR 3613, [2022] 1 WLR 3613, [2023] 1 All ER 461, [2022] WLR(D) 168 |
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ON APPEAL FROM THE COUNTY COURT
AT CENTRAL LONDON
His Honour Judge Roberts
C40YP715
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE COULSON
and
LORD JUSTICE STUART-SMITH
____________________
Ms Zehour Chelfat |
Appellant |
|
- and - |
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Hutchinson 3G UK Limited |
Respondent |
____________________
Robert Machell (instructed by Womble Bond Dickinson LLP) for the Respondent
Hearing date : 29 March 2022
____________________
Crown Copyright ©
LORD JUSTICE COULSON :
1 Introduction
2 The Background Facts
"In relation to your New Issue:
- You have not provided a Service out of the Jurisdiction (N510) form. In accordance with Civil Procedure Rule 6.34(2) (a)(b): As the Defendant is located outside of England & Wales a Service out of the Jurisdiction (N510) form is required before this claim can be issued."
3 The Judgments Below
"19. However, [the appellant] accepts that she did not provide a Service out of the Jurisdiction form at N510. What she says about this in her witness statement I will come to shortly, but the fact of the matter is this: when she wrote to the Court originally on 9th December 2015, her claim was addressed to Hutchison 3G UK Ltd., PO Box 333, Glasgow G2 9AG. When these proceedings were finally issued on 29th December 2016, the claim was directed to Hutchison 3G UK Ltd., 20 Grenfell Road, Maidenhead SL6 1EH, and she explained in her witness statement why that was at paragraph 15 to 18. She said:
'When I considered to lodge my claim against Hutchison 3G UK Ltd., I first called the defendant explaining that I have some legal documents to serve on the legal team and asked to which address the documents need to be sent to and I was given the address, which is PO Box 333, Glasgow G2 9AG because that is where the legal team is based they told me.
To ensure that I was given the correct information, I called the defendant again shortly after my first call and I asked for an address to send legal documents and they gave me the above address. I had no reason at the time to disbelieve the address was not correct because it existed and the defendant's legal team is based in Glasgow and because when the claim was issued, I received a letter from Ms [Lisa Kidd?] for the defendant with the Glasgow address on it, but there was another address in Grenfell Road, Maidenhead, which they did not give me until when I called another time.
To make things easier, when I resent another set of my claim and the application notice to the CCMCC, the defendant's address was rectified as the one of UK-based address which is Star House, 20 Grenfell Road, Maidenhead, thus the form N510 was not necessary to complete. I have taken all the necessary steps to ensure that the claim was served on the defendant at the address that was given to me by the defendant.
If the defendant chose to give me an address which requires me to complete the form N510 and then give me another address which does not require me to complete form N510, I cannot see what wrong I had personally done to jeopardise the process of this claim'"
"26. The argument advanced by Ms Chelfat is that, of course, she lodged these proceedings at Court on 11th December 2015. As I have already indicated, that was within the limitation period by a period of five days and there was no impediment to stop her issuing those proceedings. Therefore, on the face of it, for the purpose of paragraph 5.1 of Practice Direction 7A, that was the date on which the proceedings were brought.
27. However, that particular provision says where the Claim Form 'as issued' was received in the Court office. The Claim Form which was sent to the Court had the defendants at an address in Glasgow. The Claim Form which was issued subsequently had the defendants at their address in Maidenhead, and what it enabled Ms Chelfat to do was avoid the need to lodge a form N510.
28. I have to decide, really, what effect the failure to lodge that form meant in the first instance and I have come to the conclusion based on the Bioenergy case and the decision there that it was non-trivial procedural error that, if at that time, as constituted, Ms Chelfat wished to issue the claim out of the jurisdiction in Scotland and serve it there, then it was incumbent upon her to have accompanied the claim form with an N510, and the absence of that form meant, in my judgment, that the claim was not properly constituted or otherwise in order for it to be issued, and that is made clear by the Practice Direction, paragraph 2.6B, that the claimant must file that form and it is given emphasis by the Rule itself that the claim form cannot be served until that notice is filed or the Court gives permission.
29. I accept that CPR 6.34 does not talk about issue, but it seems to me that the limitation provision can only be satisfied if there is a properly constituted claim which satisfies all the procedural requirements. Ms Chelfat complains and has made the point in her oral submissions that it was up to the defendant company to provide her with the correct address. She said, 'They were responsible for assisting me in serving the claim properly', and that they had undertaken some sort of trick upon her."
"The Appellant referred me to paragraph 22 of the Grounds of Appeal, where she argues that the Court Office struck out the claim. She referred to CPR PD 3A. However, I find that that is incorrect. The Court did not strike out the claim. The Court did not issue the claim in part because of the failure to file form N510 in compliance with CPR 6.34. The Appellant referred me to a number of authorities, including DSG International Sourcing Ltd v Universal Media Corporation (Slovakia) SRO [2011] EWHC 1116. In this case, the claimant filed and served a form N510 but wrongly completed the form. Steel J held that form N510 was a nullity and could only be served if an appropriate notice was duly filed or the court gave permission nonetheless. He granted the claimant permission to serve the claim form. In my judgment, this case is distinguishable because in the present case, the Appellant has never made an application at any time asking the Court to exercise its discretion to validate retrospectively the claim sent to the Court on 11/12/15
The Appellant was in a position in September 2016 or at the latest by December 2016 to take any procedural action that was necessary to validate the claim form sent to the Court on 11/12/15. The Appellant never did so. The Appellant resent the claim form to the Court in 2016 but used the Defendant's Maidenhead address for service. In my judgment, DJ Avent correctly identified that the effect of the change of the Defendant's address was for the Appellant to avoid having to serve the claim form outside the jurisdiction and the need for a N510 Form."
"I find that the judgment of District Judge Avent discloses no error of law or perversity. He found, correctly, that CPR 6.34 applied and that it was a mandatory requirement that the Appellant serve and file a form N510. He found that the requirement in CPR 6.34 was not a trivial procedural error. District Judge Avent found that the proceedings in 2016 were new proceedings and the new claim was one year, two weeks out of time. There was no discretion to extend the limitation period. I find that the errors in the Court's letter of 17/12/15 do not bear on the issue because the claim became limitation barred on 16/12/15. In any event, the appellant has never at any stage issued a form N510 or made an application to the court to dispense with this requirement or modify it. The Appellant had a further opportunity to make an application once she was aware that documents were mislaid. Instead, the Appellant changed the address for service on the claim form. This claim form was a new claim and was limitation barred. It follows that the District Judge Avent was correct to strike the claim out. I therefore dismiss this appeal and dismiss the Appellant's appeal. Rather…despite the Appellant arguing that she would certainly have applied for permission if the claim was issued on 11 December 2015, no application was in fact ever made."
"1. Permission to appeal is granted on the following limited grounds:
(1) the Judge erred in concluding that the claim was time-barred and that the proceedings were not to be treated as brought on 11 December 2015;
(2) Specifically, the Judge erred in upholding the decision of the DJ that the failure to file a form N510 with the claim form meant that the claimant had not done all in her power to have the claim issued before the limitation period expired, in circumstances where (a) the claimant mistakenly believed the defendant's address for service was in Scotland (b) the error was caused by the defendant so informing the claimant and (d) in fact the defendant is an English registered company with an address for service in England.
(3) The Judge erred in finding that, because the claimant did not seek permission to serve the original claim form without an N510 or relief from sanctions after she discovered that the defendant had an address for service in England, but instead sought the issue of an identical claim form for service at the correct address in England, she had brought fresh proceedings outside the limitation period.
(4) The Judge erred in finding that the failure to file the N510 was not the type of procedural error which gave rise to a discretion to grant relief and/or in failing or refusing to exercise his discretion to grant such relief."
4 The Law
4.1 Form N510
"6.34
(1) Where the claimant intends to serve a claim form on a defendant under rule 6.32 or 6.33, the claimant must –
(a) file with the claim form a notice containing a statement of the grounds on which the claimant is entitled to serve the claim form out of the jurisdiction; and
(b) serve a copy of that notice with the claim form.
(2) Where the claimant fails to file with the claim form a copy of the notice referred to in paragraph (1)(a), the claim form may only be served –
(a) once the claimant files the notice; or
(b) if the court gives permission."
Paragraph 2.1 of PD6B provides that, where r.6.34 applies, the claimant must file the Practice Form N510 when filing the claim form.
"55. If there are already in existence proceedings as described in the Article, then the same proceedings ought not to be started in this jurisdiction, and service out should not be allowed even if grounds for suing in this jurisdiction could otherwise have been made out. The purpose of the notice which has to be provided under CPR 6.34 is probably twofold. First, it provides some sort of mechanism to police service of proceedings without permission under the Regulation so as to try to ensure that only proper cases make use of the opportunity to serve out of the jurisdiction without permission. It obviously requires and expects the claimant (or its solicitor) to consider the point, and to that extent is intended to act as a sort of filter. Second, it provides an indication to the recipient of the notice that the claimant considers that there are no equivalent proceedings on foot so that the recipient can decide whether to challenge service (and jurisdiction) if it disagrees (though the recipient is less likely to be interested in that because it will form its own view on the matter anyway)."
Those twin purposes might be regarded as being some way removed from the facts of this case.
"118. To my mind, the words of CPR 6.34(2) plainly provide a sanction for failing to file the notice contained in form N510 or to obtain the Court's permission, namely that the claim form may not be served. In context, that means that it will not be treated as having been served formally, so as to initiate the procedures that follow service of the claim form. Whether this is called an express or implied sanction, I think that an application for permission under CPR 6.34(2)(b) is an application for relief from sanction within the meaning of CPR 3.9 and that there apply to it the principles laid down by the Court of Appeal in Denton v TH White [2014] 1 WLR 3926."
4.2 The Issue of the Claim Form and the Limitation Act
"18. The date of issue of the claim form fixes the time within which the proceedings have to be served (rules 7.5 and 7.6). A defendant can see from the claim form whether or not he has been served in time. He will not be able to see when the request to issue the claim form was received by the court, but if the date of issue is outside the limitation period this will be apparent and the Practice Direction (paras. 5.2 – 5.4) is designed to ensure that anyone enquiring will be able to discover the date of receipt. There is a measure of uncertainty about this but not in my judgment sufficient to warrant a different construction of the statute.
19. I do not see that receipt of the claim form by the court office involves any transactional act. The court staff who receive the documents are not performing any judicial function and have no power to reject them. Mr Norman puts the extreme example of a form which does not name the parties or one which does not include a claim. If such forms were rejected, I suspect that the answer would be that the claimant had not delivered anything which could properly be described as a claim form.
20. So for these reasons I reject Mr Norman's submissions. I think the Practice Direction is correct and the judge was right so to hold. This conclusion makes it unnecessary for me to consider the alternative ways in which Mr Willins put his case based on theHuman Rights Act
and Riniker. I do not think that the
Human Rights Act adds anything to the debate and as Lord Justice Evans said the Riniker remedy is now achieved by paragraph 5 of the Practice Direction. What I have said however is confined to the situation contemplated by the Practice Direction, that is to say receipt by the court office of the claim form. This necessarily involves actual delivery by whatever means permitted by the rules to the correct court office during the hours in which that office is open (CPR 2 PD paras. 2 and 3). That is what happened in this case. Different considerations might apply if delivery was made to the wrong place or outside office hours. They will have to be considered if they arise."
"32. Taken literally, the ratio of Barnes v St Helens Metropolitan Borough Council is that once the claimant has delivered his request for the issue of a claim form to the court office, he has "brought" his action. If Mr Last's evidence is correct, Messrs Page did that in the present case.
33. However, literalism is not fashionable, so it is also necessary to consider the policy that underpins the decision. Tuckey LJ dealt with this too. He pointed out that this meant that a claimant had the full period of limitation within which to "bring" his claim; and that it would be unjust if he had to take the risk that the court would fail to process it in time. It does not seem to me that the reason why the court fails to process the request in time alters the justice of the case. If it is unjust for the claimant to take the risk that the court staff are on strike, it seems to me to be equally unjust for him to have to take the risk that a member of the court staff might erroneously put his request in the shredder or the confidential waste, or that his request is destroyed by flood or fire in the court office, or is taken in a burglary. Each of these might be reasons why the court failed to process the request in time. Essentially the construction of the Act that this court favoured in Barnes v St Helens Metropolitan Borough Council is based on risk allocation. The claimant's risk stops once he has delivered his request (accompanied by the claim form and fee) to the court office. PD 7 cannot, in my judgment, alter the correct construction of the Act…
38. If, therefore, the claimants establish that the claim form was delivered in due time to the court office, accompanied by a request to issue and the appropriate fee, the action would not, in my judgment, be statute barred. In my judgment both the Master and the judge were wrong to hold the contrary. On the facts, I consider that the Master and the judge were wrong summarily to reject Mr Last's evidence. Indeed it seems to me that the Master applied the "balance of probability" test on what was, after all, a summary application, rather than the trial of a preliminary issue."
"…it does not make sense to penalise a party who has done all that is in his power to do on the basis that a further act is required by the court which has not been done in time to allow the party to qualify for the relief for which he is asking."
This test has been applied in a number of first instance cases, such as Lewis v Ward Hadaway [2015] EWHC 3503 (Ch); [2016] 4 WLR 6; Bhatti v Ashgar [2016] 3 Costs LR 493; and Liddle v Atha & Co Solicitors [2018] EWHC 1751 (QB); [2018] 1 WLR 4953.
4.3 Failure to Pay Fees
5. Preliminary Matters And The Two Substantive Issues
6. Issue 1: Was The CCMCC Entitled To Refuse To Issue The Appellant's Claim Form In December 2015?
7. Issue 2: Is It Arguable That The Action Was Brought On 11 December 2015?
"5.1 Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is 'brought' for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date."
LORD JUSTICE STUART-SMITH:
LORD JUSTICE PETER JACKSON: