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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Stoute v LTA Operations Ltd [2014] EWCA Civ 657 (15 May 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/657.html Cite as: [2015] CP Rep 1, [2015] 1 WLR 79, [2015] 1 All ER 131, [2014] EWCA Civ 657, [2014] WLR(D) 212, [2015] WLR 79 |
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ON APPEAL FROM Central London Civil Justice Centre
HH Judge Mitchell
2IR74042
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE TOMLINSON
and
LORD JUSTICE UNDERHILL
____________________
ISAAC STOUTE (A MINOR BY HIS LITIGATION FRIEND MICHAEL STOUTE) |
Appellant |
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- and - |
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LTA OPERATIONS LTD t/a LAWN TENNIS ASSOCIATION |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Kate Gallafent (instructed by Farrer & Co LLP) for the Respondent
____________________
Crown Copyright ©
Lord Justice Underhill :
INTRODUCTION
THE RELEVANT RULES
"(1) Proceedings are started when the court issues a claim form at the request of the claimant.
(2) A claim form is issued on the date entered on the form by the court.
"
As the facts of this case illustrate, there may be a substantial gap between the date on which a claimant requests the issue of a claim form and the date on which it is actually issued. Practice Direction 7A to rule 7 contains an important gloss on the operation of rule 7.2 in such a case. Paras. 5.1 and 5.2 of the Practice Direction read as follows:
"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 purpose of the Limitation Act 1980 and any other relevant statute on that earlier date.
5.2 The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court."
"Subject to [certain immaterial exceptions], the court will serve the claim form except where-
(a) a rule or practice direction provides that the claimant must serve it;
(b) the claimant notifies the court that the claimant wishes to serve it; or
(c) the court orders or directs otherwise."
It is this rule which is at the centre of the appeal before us.
"Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form."
In the case of service by first-class post the "step required" by the table is the posting of the claim form. In such a case the claim form "is deemed to be served on the second business day after [posting]": see rule 6.14. There is something of a mismatch between this rule and rule 6.4, since it appears to assume that the relevant "step" is to be completed by the Claimant, whereas the default position under rule 6.4 is that service will be effected by the Court. However, Ms Gallafent submitted that the scheme only makes sense if the reference in rule 7.5 (1) to the required step being taken by "the claimant" includes where appropriate that step being taken by the Court; and I think that must be right.
"Where there has been an error of procedure such as a failure to comply with a rule or practice direction
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error."
THE PROCEDURAL HISTORY UP TO THE DECISION OF DJ AVENT
"We enclose N1 [that is, the claim form] to issue for solicitor service. Please do not serve it on the defendant in the usual manner but return the claim form to us for service."
That was of course a notification to the Court under rule 6.4 (1) (b): see para. 6 above. Mr Stoute also provided the necessary information in support of an application for fee remission.
THE DECISION OF DJ AVENT
"111. A number of claimants when issuing proceedings, generally where they are represented by Solicitors but not exclusively, request pursuant to CPR 6.4(1)(b) that the papers are returned to them for service at a later date. This is not at all uncommon. If all goes according to plan then the Claim Form will be returned to the Solicitors after issue marked "Please Return to Solicitors for Service" or words to that effect. That endorsement is generally prominently displayed on the Claim Form and will, more than likely, be in red ink.
112. However, as this case so bleakly demonstrates, things do not always go according to plan; and this is not at all uncommon either. Covering letters, whether containing a CPR 6.4(1)(b) request or not, accompanying Claim Form as a matter of fact go astray, they become detached, they may be misfiled, mislaid, lost, misplaced; they may have mistakenly been left out of the envelope by a secretary to begin with; they may come adrift when being transferred to another Court for issue, sometimes they may not be read properly by a member of the Court staff or, perhaps, they are not completely clear or are ambiguous in the first place. So, if the circumstances in which instructions, pursuant to CPR 6.4(1)(b), might be overlooked or are absent at the time of issue of a Claim Form are not quite exhaustive, nonetheless, it is readily apparent that there can be any number of reasons for this.
113. This means in practice that a number of Claim Forms (on a not too infrequent basis) are, in fact, served by the Court when the claimant did not wish for that to happen. Normally such service does not make a great deal of difference and an order is then made which seeks to rectify, or at least minimise, any perceived harm by granting a long extension in which to serve the Particulars of Claim. In this case however, in view of the history of the matter I have set out above, it obviously does make a difference. The question is: what is to be done?"
It was his view that in a case of this kind service was effective, albeit irregular. Paras. 114-115 of his judgment read as follows:
"114. Ms Gallafent contended, I appreciate at somewhat short notice, that the effect of the Court serving contrary to a request under CPR 6.4(1)(b) was to nullify that service. I disagree. I cannot see that the wording of the rule is such that it invests it with a mandatory requirement such that if any request made under it is not adhered to that should invalidate the service. If that was ever the intention of the rule then I am sure that express provision would have been made for it.
115. On the contrary, it seems to me that CPR 6.4(1)(b) is simply directive. It is not binding. The fact that the Court may have effected service in error does not, in my judgment, negate that service. It is a practical fact and one then has to deal with the consequences."
"118. I do not think that CPR 3.10 assists in this instance. Given that the CPR is directed at litigants I am not sure that it can be invoked as against the Court in any event. When it talks of a "failure to comply with a rule or practice direction" it seems to me that that relates to, and is directed at, the parties and not the Court and, therefore, it is not applicable. Even if it is relevant "the error does not invalidate any step taken in the proceedings unless the court so orders" and, as I have already mentioned, as CPR 6.4 (1)(b) is directory, I cannot see why an error of the Court should negate service and, hence, be a reason to invalidate that step.
119. In practice also it would lead to confusion. There would be applications to set aside service under CPR 3.10 which would unnecessarily use scarce Court resources and time. No-one would know where they stood; whether service had taken place or not, with all the uncertainty that would bring with it. Far better to have a clear understanding that in the event that the Court should serve the Claim Form contrary to a CPR 6.4 (1)(b) direction it is, nevertheless, good service for all purposes."
"144. There may be some further consequences which I have not identified but, in all these instances, they arise from the mutual mistake of both parties of having treated the Claim Form as not having been served. Indeed, the LTA have never demurred from that position. Just in the same way as the service of the Claim Form cannot be 'unserved', in my judgment it is not sensible to now try to dismantle all that has flowed from that fact. So what is to be done?
145. I am sure that there is any number of elaborate and sophisticated arguments that the LTA would now like to mount and garner to say why Isaac's claim should be dismissed for a failure to serve his Particulars of Claim in time. However, to my mind that would be too technical an approach.
146. This was, as I have said, a mutual mistake. The LTA were content to acquiesce with Whimsters' analysis that the Claim Form had not been served by the Court. The LTA has never previously taken that point that Isaac has failed to serve a Particulars of Claim in accordance with the rules, and it only arises because of the decision I have made as to service of the Claim Form. In any event, I do not see that it would be in keeping with the Overriding Objective at all, and might even be considered somewhat perverse, if the claim were now to be struck out on what might be considered to be fortuitous grounds for failing to serve a Particulars of Claim in accordance with CPR 7.4 when the LTA had been complicit in the mistake giving rise to that state of affairs.
147. Moreover, the fact of the matter is that the LTA were well aware, by virtue of service of the Claim Form in March 2012, what the case was that they would have to meet in due course. In addition, it is very relevant in my view that the differences between the parties have been very well aired and continuously rehearsed in the correspondence between them over a substantial period of time, measured in years rather than months given the previous proceedings as well. Further, the LTA and its solicitors has now had the Particulars of Claim for over two months since it was served in mid-November 2012 so it cannot be said that the LTA has, or could have, been taken by surprise in any sense by what has occurred.
148. In addition, if the parties had, in fact, treated service by the Court as effective service then the issue of when the Particulars of Claim should have been served would have crystallised rather sooner than it has done. Given that the Court had erroneously served the Claim Form, in contravention of an instruction under CPR 6.4 (1)(b) not to do so, in the circumstances, I cannot conceive that the Court would not have granted an indulgence and afforded time to Isaac in which to serve his Particulars of Claim which would logically be until 8th July 2012, being the latest date by which the Claim Form would have had to be served. In those circumstances, whilst the Particulars of Claim may not have been served as late as November 2012, nevertheless, that statement of case would have been served in time.
149. There are deep and fundamental divisions between the parties which, so far as Isaac is concerned is predicated upon discrimination in one form or another. So long as Isaac continues to play tennis to the standard which gives him an LTA rating of 3.2 there will continue to be fairly close proximity between him, Mr Stoute and the LTA for the foreseeable future and, in my view, unless this case is heard and Isaac given a forum for his allegations to be heard I can easily see that there is fertile ground for further disputes and tensions between them.
150. Accordingly I propose to exercise my case management powers in a way which enables the case to proceed. If in doing so it should be felt that I am straining the rules too far then I would simply observe that it means that the Overriding Objective is doing its job. It is allowing for flexibility and practicality to achieve fairness and justice and not putting those concepts into a straightjacket; it is putting the parties on an equal footing without wasting any more time and expense in arguing about procedural matters, which would not be proportionate. What the parties require overall is certainty of outcome: in other words, has there been discrimination or not? This can best be achieved by getting the case on for trial sooner rather than later given that it was now issued almost a year ago."
He went on to propose a carefully worked-out suite of orders that allowed the claim to continue on the basis of the amended claim form (except that Mr Draper was not to be a defendant). These included an order retrospectively extending the time for service of the Particulars of Claim to their date of actual service.
THE APPEAL TO JUDGE MITCHELL
THE ISSUES ON THIS APPEAL
(A) WAS SERVICE OF THE CLAIM FORM EFFECTIVE ?
(B) WAS DJ AVENT WRONG TO EXTEND TIME FOR SERVICE OF THE PARTICULARS OF CLAIM ?
"On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including
(a) the interests of the administration of justice;
(b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional;
(d) whether there is a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol);
(f) whether the failure to comply was caused by the party or his legal representative;
(g) whether the trial date or the likely trial date can still be met if relief is granted;
(h) the effect which the failure to comply had on each party; and
(i) the effect which the granting of relief would have on each party."
(1) He had disregarded the fact that the Claimant's failure to serve the Particulars of Claim was intentional: see head (c).
(2) He had given no weight to the fact that there was no good explanation for that failure: see head (d). She pointed out that he had expressly found that there had been no good reason for the Claimant's failure to serve the claim form by 8 July 2012 (if, contrary to his primary decision, it had not already been served) see para. 29 above.
She added that it was not open to the Claimant to blame his solicitors (see head (f)), since no evidence on that question had been adduced.
CONCLUSION
Lord Justice Tomlinson:
Lord Justice Rimer: