[View without highlighting]
[Printable RTF version]
[Buy ICLR report:  1 WLR 79]
[View ICLR summary:  WLR(D) 212]
||Neutral Citation Number:  EWCA Civ 657
||Case No: B2/2013/2605
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Central London Civil Justice Centre
HH Judge Mitchell
||Royal Courts of Justice
Strand, London, WC2A 2LL
||15th May 2014
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE TOMLINSON
LORD JUSTICE UNDERHILL
|| ISAAC STOUTE (A MINOR BY HIS LITIGATION FRIEND MICHAEL STOUTE)
||- and -
||LTA OPERATIONS LTD t/a LAWN TENNIS ASSOCIATION
(Transcript of the Handed Down Judgment of
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)
Victoria Webb (instructed through the Bar Pro Bono Unit) for the Appellant
Kate Gallafent (instructed by Farrer & Co LLP) for the Respondent
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Underhill :
- The issues in this appeal are entirely procedural, and I need say almost nothing about the underlying claims. The Claimant, who is the Appellant before us, has just turned 18. He is a talented professional tennis player. He is black. He believes that he has been discriminated against on the grounds of his race by the Respondent, which is the governing body for professional tennis in the UK. In 2009 he brought proceedings in the County Court complaining of discrimination, but they were settled.
- On 10 February 2012 the Claimant, through his father (to whom I will refer as Mr Stoute) as his litigation friend, commenced further proceedings in the Central London County Court. On 21 August 2013 those proceedings were dismissed by HHJ Mitchell, allowing an appeal against a decision of District Judge Avent dated 27 February 2013. Permission to appeal to this Court was granted by Vos LJ.
- The Respondent is represented by Ms Kate Gallafent of counsel, who appeared before both the District Judge and the Judge. The Claimant has been represented by Ms Victoria Webb of counsel, acting pro bono. She did not appear below.
THE RELEVANT RULES
- I should start by setting out the rules about the initiation of proceedings and service of the claim form (within the jurisdiction), which are to be found partly in Section II of Part 6 of the Civil Procedure Rules and partly in Part 7.
- Issue of proceedings. Rule 7.2 is entitled "How to Start Proceedings". It reads (so far as material) as follows:
"(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."
- Service. Rule 6.3 prescribes the various permissible methods of service of a claim form within the jurisdiction. These include service by first-class post. It is followed by rule 6.4, which is headed "Who is to Serve the Claim Form". Para. (1) reads:
"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.
- Time limit for service. Rule 7.5 (1) prescribes, broadly, that a claim form must be served within four months of issue; but the detailed provisions are a bit more complicated than that. The introductory part of the rule reads:
"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.
- Extension of time for service. Rule 7.6 governs applications for an extension of time for serving a claim form. I need not set it out here. Para. (1) provides that a claimant may apply for an order extending the period for compliance with rule 7.5. Paras. (2) and (3) contain different provisions depending on whether such an application is made before or after the expiry of the four-month limit. Para. (4) (b) provides that notice of the application need not be given to the defendant.
- Particulars of claim. CPR 7.4 (1) provides that particulars of claim must either be contained in or served with the claim form or must be served within 14 days after service of the claim form. There is no special provision governing the extension of service of Particulars of Claim: the Court's general powers under rule 3.1 (2) (a) apply.
- I should, finally, set out the terms of rule 3.10, which is headed "General power of the court to rectify matters where there has been an error of procedure". It reads:
"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
- The history of these proceedings presents a dismal catalogue of confusion and error by both the Court administration and the Claimant's then solicitors, Messrs Whimsters. It is set out with exemplary thoroughness and clarity by DJ Avent in the Judgment which gives the reasons for his decision. I need not follow every twist and turn, but even so I fear I must go into some detail.
- On 10 February 2012 Mr Stoute, after an unsuccessful attempt to have the claim form issued in the High Court, took it to the Central London County Court. He was told at the counter that it could not be issued there and then but would have to be sent on to the County Court Money Claims Centre (more usually known as the Salford Business Centre). This was incorrect, since it was clear from the claim form, at least if read carefully, that the Claimant was claiming a declaration and an injunction as well as damages; and accordingly that it was not a money claim of the kind dealt with by the Centre. The form was accepted by the Court for transmission to Salford and date-stamped as evidence of receipt. That stamp was important for limitation purposes: see para. 5 above and paras. 5.1 and 5.2 of the Practice Direction there set out.
- With the claim form Mr Stoute handed the Court a letter from Whimsters which said:
"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 claim form left with the Court did not include Particulars of Claim. It was indicated on the form that they were to follow.
- The issue of the proceedings was seriously mishandled by the Salford Business Centre. Four weeks were wasted on inquiries about the information required for the purpose of fee remission notwithstanding that Mr Stoute had already supplied that information. Eventually, however, on 8 March 2012 the claim form was issued: it was given the number 2IR74042. Instead of following Whimsters' instructions and returning the claim form to them for solicitor service the Centre undertook service itself, sending the claim form to the Defendant by first-class post on 11 March: it is that error which is at the heart of the appeal before us. Assuming that such service was effective, it would be deemed to have occurred on 13 March (see rule 6.14); and that date was stamped on the face of the form as the date of service.
- On 21 March 2012 the Respondent's solicitors, Farrer & Co., wrote to Whimsters asking them to note their interest. Whimsters replied saying that the claim form had been served contrary to their instructions to the Court, that it had been "referred back to Central London County Court and put right" and that it would "be served within four months of issue by solicitor service". Farrers took that statement at face value and treated the service as ineffective.
- Whimsters' concern about the handling of the claim by the Centre was not only and indeed it seems not mainly about the Respondent having been prematurely served. They and Mr Stoute were very upset that the claim form had not been issued until 8 March. They believed that the formal issue date should have been 10 February, i.e. the date that Mr Stoute delivered the form to the Court. After some fruitless correspondence Mr Stoute attended the Central London County Court in person on 14 May 2012 and managed to persuade a clerk wrongly to amend the issue date from 8 March to 10 February. It seems that they attached such importance to this exercise because they believed that if the proceedings were issued on 8 March the Respondent might be able to raise a limitation defence to all or part of the claim. Under section 118 of the Equality Act 2010 a claim must be brought within six months of "the act to which the claim relates" or, where the claim relates to "conduct extending over a period", within six months from the end of that period. Presumably, though their thinking is far from clear, they believed that one or more of the acts complained of took place, or a period of conduct ended, between 10 September and 8 October 2011. But any such concern was misplaced because the issue date was immaterial for limitation purposes: what mattered was the stamped receipt date see paras. 5 and 13 above.
- At the same time as he got the issue date changed, i.e. on 14 May 2012, Mr Stoute also made various amendments to the claim form. I need not itemise them all, but they included adding the Respondent's Chief Executive as an individual Defendant, apparently in response to some concern expressed by the Court, though the nature of that concern is unclear.
- Also on 14 May 2012, Mr Stoute lodged what purported to be an application by Whimsters under rule 7.6 for an extension until 14 September 2012 of the time for serving or, more accurately, taking the relevant "required step" in relation to the claim form. It is rather surprising that an extension was sought at this stage. On the basis of the true date of issue, i.e. 8 March, the original deadline would expire on 8 July; if, as Mr Stoute thought he had just achieved, the issue date was 10 February, it would expire on 10 June. Either way the Claimant had plenty of time left. The reason for the application given at the time was the administrative errors in Salford which had led to the delay in issuing the claim form. It subsequently appeared that the real reason why Mr Stoute did not want the claim form served within the four months was that he was awaiting the outcome of misconduct proceedings brought by the Respondent against himself. To anticipate, neither explanation appears satisfactory: see para. 28 below.
- The application was rejected by a District Judge because the statement of truth was not signed, and the Judge pointed out that it was in any event premature. A signed version of the application was lodged on 22 June. It was made, as permitted by rule 7.6 (4) (b), without notice to the Respondent.
- By the time the signed version of the application was lodged the (true) deadline was indeed approaching, but unfortunately the Court then lost the file. The application was not considered until 28 August, when DJ Avent dealt with it on the papers. (A further complication is that what was in fact before him was a further version of the application, lodged on 16 August, in rather different terms from the earlier versions: it is not clear why this was lodged.) He granted the application; and in view of the delay caused by the loss of the file he thought it right to extend time not to 14 September as asked but to 16 November.
- A copy of DJ Avent's order was served on the Respondent. It applied as it was entitled to do, since the application was made without notice (see rule 23.10) to have the extension set aside. If that application were successful the result would of course be that the proceedings would lapse, since it would be too late to serve the claim form within the original four-month limit.
- On 15 November 2012 the Claimant served the claim form (as amended see para. 18 above), accompanied by Particulars of Claim. But as a precaution against the Respondent's application to set aside being successful he also, on 5 December 2012, commenced fresh proceedings, which were issued with the number 2CL03106. The "brief details" on the form and the Particulars of Claim which were attached are identical to those in 2IR74042.
THE DECISION OF DJ AVENT
- On 23 January 2013 DJ Avent heard the Respondent's application to set aside his order of 28 August which had granted the Claimant an extension of time for service of the claim form (see para. 21 above). Ms Gallafent appeared for the Respondent and Mr Michael Paulin of counsel appeared for the Claimant. The stance of both parties in their skeleton arguments was that the service of the claim form by the court in March 2012 had been ineffective. That of course had been the Claimant's position from the start emphatically asserted by Whimsters in correspondence and the Respondent had gone along with it. But DJ Avent raised at the beginning of the hearing the possibility that the service had been effective after all, in which case the application for an extension (in that regard) was redundant and the real question would be how to unscramble the consequence of the parties having proceeded for many months on a mistaken basis. He gave the parties time to consider and heard submissions on that question as well as those raised in the skeleton arguments.
- DJ Avent reserved his judgment. A written judgment was promulgated on 6 February 2013. It runs to 155 paragraphs and is conspicuously clear and thoughtful. His conclusions can be summarised as follows.
- First, and fundamentally, he held that the service by the Court in March had been effective service, notwithstanding that it was contrary to the Claimant's notification that he wished to effect service himself. As paras. 111-113 he explained that the problem was not an uncommon one. Those paragraphs are worth quoting in full, because they explain how things happen in the real world:
"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."
- DJ Avent felt able to reach that conclusion on his construction of the words of rule 6.4 (1) (b) read by themselves. He considered but rejected the possibility of resort to rule 3.10. He said:
"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."
- The conclusion that there had been effective service of the claim form in March had various consequences. One was that the Claimant was in breach of his obligation under rule 7.4 to serve Particulars of Claim within 14 days of service of the claim form. Another was that the amendments made on 14 May 2012 (see para. 18 above) were ineffective since the claim form had already been served. The District Judge had to decide what to do about all this. I should again quote his decision and reasoning in full:
"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.
- DJ Avent recognised that his conclusion that service was effective involved a point on which there was no previous authority and which might be the subject of challenge. Accordingly he considered what order he would have made on the Respondent's application if the service in March was ineffective. He found that the Claimant had shown no good reason for his failure to serve the claim form by 8 July. Witness statements from Mr Whimster and Mr Stoute had advanced the two reasons which I have already indicated at para. 19 above, but DJ Avent believed that neither reason came close to justifying the grant of an extension. I need not set out his reasoning (which is at paras. 131-140 of his judgment) since it has not been challenged. It followed that if he had not held that the claim form had been served within four months of issue he would have set aside his order of 28 August 2012 and dismissed the proceedings.
- There was a hearing on 27 February 2013 at which the District Judge formally handed down his judgment and made the orders proposed. He gave the Respondent permission to appeal. He decided to defer making any order as to costs until the outcome of the appeal was known.
THE APPEAL TO JUDGE MITCHELL
- The Respondent duly appealed against the order of DJ Avent. The Claimant's Respondent's Notice did not seek to challenge DJ Avent's secondary conclusion that if effective service had not occurred in March he would not have extended time.
- The appeal was heard by Judge Mitchell on 30 May 2013. Ms Gallafent again appeared for the Respondent. The Claimant was represented by Mr Yasin Patel of counsel. The Judge reserved his judgment, which was promulgated on 9 July, though it was not embodied in a formal order until 23 August. He allowed the appeal. In short, he held that the service by the Court in March 2012 was a nullity because it was effected contrary to the Claimant's notification that he wished to effect service himself: since the Judge's reasons consisted essentially of accepting Ms Gallafent's submissions which I shall have to consider below I will not set them out here. It followed that the action could only proceed if the Claimant were granted an extension of time for service, and there was, as I have said, no challenge to DJ Avent's decision that good reason for an extension had not been shown. The Judge was not sure that, that being so, any further order was required; but in order to put the matter beyond doubt he formally dismissed the claim.
THE ISSUES ON THIS APPEAL
- The Notice of Appeal was apparently drafted by Mr Stoute without legal assistance, and the pleaded grounds proceed on the misconception that any problem about service in 2IR74042 was cured by the issue of 2CL03106 and/or by the fact that he was complaining of a "continuing act". The Notice also contains various applications for relief, including a claim for an interim injunction, which could not arise in the context of this appeal. However, Ms Webb made it clear before us that she was pursuing the appeal straightforwardly on the basis that DJ Avent had been right to hold that the claim form had been effectively served and to extend the time for service of the Particulars of Claim so as to allow the case to proceed. She relied principally on his reasoning based on the effect of rule 6.4 (1) read on its own; but in the alternative she relied on rule 3.10. She acknowledged that rule 3.10 did not appear to have been relied on before Judge Mitchell, but it had, as we have seen, been considered by DJ Avent.
- Ms Gallafent's principal submission, as at both stages below, was that the service of the claim form by the Court had been ineffective. Insofar as the Claimant relied on rule 3.10, she took no point on the fact that he had not done so before Judge Mitchell, but she submitted that it could not assist him, for reasons which I consider below. Her second submission was that even if the service of the claim form in March had been effective DJ Avent had been wrong to extend time for service of the Particulars of Claim. I take the two issues in turn.
(A) WAS SERVICE OF THE CLAIM FORM EFFECTIVE ?
- The discussion below, and to some extent also before us, was conducted in terms of whether the requirements of rule 6.4 (1) about who is to effect service were mandatory so that service by the wrong person was a nullity or merely directory. That does not seem to me the best starting-point. The Civil Procedure Rules contain an express provision dealing with the consequences of "errors of procedure", namely rule 3.10, which I have set out at para. 10 above; and in my view it is necessary to begin by asking whether that rule applies in the circumstances of the case. That may still involve a consideration of whether the provisions of rule 6.4 (1) are of such a nature that rule 3.10 cannot apply see paras. 39-40 below but I think that to start there puts the focus in the wrong place.
- On that basis the principal question is whether the service of the claim form by the Court, in disregard of the Claimant's notification that he wished to effect service himself, constituted "an error of procedure" within the meaning of rule 3.10. In my view it did. What happened in this case seems to me to fall comfortably within the natural meaning of that phrase; but if necessary I would refer to the guidance given by this Court in Steele v Mooney  1 WLR 2819, where it was said that "a broad common sense approach" should be taken to the scope of rule 3.10 (see per Dyson LJ, at para. 22 (p. 2824H)). That is in accordance with the case-law about the predecessor provision, RSC O. 2 r. l, which was described as "a most beneficial provision, to be given wide effect": see Phillips v Symes (no. 3)  UKHL 1,  1 WLR 180, per Lord Brown at para. 32 (p. 188 A-B), citing Golden Ocean Assurance Ltd v Martin  2 Ll Rep 215.
- DJ Avent questioned whether rule 3.10 could apply to an error by the Court as opposed to an error by a party (see para. 118 of his judgment, set out at para. 27 above). But Ms Gallafent disavowed any such submission, and, with all respect to the District Judge, I can see no reason why the rule should not apply in such a case. The language is not confined to errors by a party, and the policy considerations which underlie the rule would seem to be the same whether a procedural mistake is the responsibility of the party or the Court. There is some support for this view in the decision of the House of Lords in Phillips v Symes (above), where Lord Brown said that it was "at least arguable" that the omission by a Swiss court, in effecting service in Switzerland, to include among the documents served the original version of the claim form (though a German translation was included) constituted an error of procedure within the meaning of the rule (see para. 31 at p. 187 F-H).
- Ms Gallafent submitted that rule 3.10 could not apply in the present case for three reasons, which I take in turn.
- First, she submitted that the term "error of procedure" could not be applied to an act which was a nullity and that service by the Court in disregard of the exceptions identified at (a)-(c) in the rule must be regarded as such an act. In particular, she submitted that the approach needed to be the same to all three exceptions; and that, since service by the Court where some rule or practice direction provided for service by the claimant (exception (a)) or where the court itself had ordered service by someone else (exception (c)) would plainly be a nullity, the same must apply to exception (b). It appears to have been this argument in particular which carried weight with Judge Mitchell.
- I cannot accept that submission. I can accept that there may be cases of what might, on a literal approach, be describable as "errors of procedure" but which are nevertheless of such a nature that they are evidently irremediable and cannot have been intended to fall within the scope of rule 3.10. But I see no reason why service in breach of rule 6.4 (1) should be regarded in that way or, to put it more precisely, why it should be inferred that the rule-maker intended that rule 3.10 should be inapplicable in such a case. There is nothing in the language to compel any such conclusion: if anything, though I do not suggest that this is by itself conclusive, the use of the word "will" rather than "shall" or "must" might be thought to point the other way. More substantially, there is nothing contrary to the fundamental scheme of the Rules, or radically unfair to the parties, in allowing such service to stand subject to any contrary order under rule 3.10 (a). There is nothing wrong in principle about service being effected by the Court: on the contrary, that is the primary route for which the Rules provide. The claim form will of course come formally to the attention of the defendant, which is the essential purpose of the rules about service. No difficulty will be created for the defendant, who will not at the time of service know that anything irregular has occurred and will simply proceed to respond in the usual way in accordance with Part 9 of the Rules. As for the claimant, in some cases his reasons for wanting to effect service himself may not have been substantial, and the Court's error will make no real difference to him and he will be happy to overlook it. No doubt there will also be cases where the error does deprive him of a real advantage, most obviously (and indeed this is the only example I can think of) if he had wanted to defer service for the time being, or perhaps retain the possibility of not proceeding at all. But the possibility of prejudice of this kind does not seem to me to be a reason for treating premature service by the Court as a nullity. Insofar as the claimant has suffered some tactical prejudice by the cat being let out of the bag early the damage will have been done whether it is a nullity, so that service has to be effected afresh, or not. Insofar as there is procedural prejudice, e.g. because he is not ready to serve Particulars of Claim, that can be addressed by the grant of an appropriate extension, as DJ Avent pointed out (see para. 113 of his judgment).
- I do not think that Ms Gallafent's point about heads (a) and (c) takes matters further. It is in fact difficult to envisage actual examples where either head might be engaged certainly, counsel were able to come up with none. But it does not seem to me axiomatic that service by the Court in breach of a rule or order providing for service by the claimant should be a nullity, given that "failure to comply with a rule" is one of the explicit examples of an error of procedure provided in rule 3.10. If there were some important reason why in a particular case service had to be effected by the claimant, no doubt when the problem emerged an order would be made under rule 3.10 (a) invalidating the service by the Court.
- Ms Gallafent's second objection was that the circumstances of the present case fall within the ambit of rule 7.6 and accordingly that resort could not be had to rule 3.10 as a backdoor means of obtaining relief that would not be available under that rule. If the premise is correct, the conclusion would certainly follow see Vinos v Marks & Spencer Plc  3 All ER 784 and Totty v Snowden  EWCA Civ 1415,  1 WLR 1384. But I do not believe that it is correct. Rule 7.6 applies to cases where service has not been effected within the period allowed by rule 7.5. But the purpose for which rule 3.10 is relied on in the present case is to establish that such service was effected, albeit by the wrong person. There is an analogy, though the cases are not identical, with the decision of this Court in Steele v Mooney (above), where a defective application for an extension of time to serve the claim form was held to be rectifiable under rule 3.10: Vinos was distinguished on the basis that there was a difference between a case where an application had been made which did not conform to the rules and one where no application had been made at all (see per Dyson LJ, giving the judgment of the Court, at paras. 25-30 (pp. 2825-7)).
- Ms Gallafent's third objection was that if rule 3.10 applied in such a case that would create grave uncertainty: parties need to know where they stand. I do not believe that this is a good point. As I have already observed, a defendant who is served by the Court in a case of this kind will typically be unaware that the claimant had notified a wish to effect personal service. If the claimant decides not to object the claim will simply proceed without difficulty. Of course the claimant may object, but he will in practice be bound to do so promptly and any uncertainty created by the irregularity will be resolved by the Court. It is no doubt possible, though it will be untypical, that the defendant may discover at some later stage in the proceedings that service was effected in disregard of the claimant's wishes; but if the effect of rule 3.10 is as I would hold that would give rise to no uncertainty rather the reverse.
- Accordingly I agree with DJ Avent, albeit for not quite the same reasons as him, that the service by the Court of the Claimant's claim form in March 2012 constituted effective service, and in my view the Judge was wrong to hold otherwise.
- Finally on this aspect, Ms Gallafent submitted that if, contrary to her case, rule 3.10 applied, the Court should make an order under sub-para. (a) invalidating the service in March 2012, because it would be "grotesque" if the Claimant were permitted to rely on that service now when he and his solicitors had for many months vehemently asserted that it was ineffective. I have some sympathy with this application, but in the end I think it would be wrong to accede to it. Wrong-headed though Whimsters' conduct may have been at some points, it is important not to lose sight of the fact that the initial mistake was entirely that of the Court, and the question whether the effect of that mistake was to invalidate the service was not straightforward. Further, it was the clear view of DJ Avent, albeit expressed in a different context, that the right course overall was to exercise any relevant procedural discretions so as to allow these proceedings to continue: see the passage from his judgment which I quote at para. 28 above. Although Ms Gallafent challenges that view, I explain below why I think that it was open to him: see paras. 48-51. To make the order which she seeks under rule 3.10 (a) would be inconsistent with the District Judge's approach.
(B) WAS DJ AVENT WRONG TO EXTEND TIME FOR SERVICE OF THE PARTICULARS OF CLAIM ?
- Ms Gallafent pointed out that in considering whether to extend time for the service of the Particulars of Claim DJ Avent was obliged to follow the approach laid down by rule 3.9. She referred us to Price v Price  EWCA Civ 888,  1 All ER 911. Rule 3.9 (1) as it then stood (it has of course since been amended) read as follows:
"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."
- Against that background, Ms Gallafent pointed out that DJ Avent had made no explicit reference to rule 3.9, and she submitted that it was evident that he had in fact failed to have regard to at least two of the considerations enumerated in it. Specifically:
(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.
- I have set out DJ Avent's reasoning on this issue in full at para. 28 above. It is both full and careful, and subject to the particular points identified above Ms Gallafent did not suggest that it was irrational or otherwise legally flawed. In particular, she did not suggest that he was wrong to attach weight to the facts (a) that Whimsters' mistaken view about the effectiveness of the service of the claim form by the Court was shared by Farrers and (b) that the refusal of an extension, and thus the dismissal of claim 2IR74042, would not bring the pursuit of the Claimant's claims to an end. It is in fact clear that the Judge took a balanced overall view, paying explicit regard to the over-riding objective, about what course was most likely to get the continuing disputes between the parties substantively resolved as quickly and as cheaply as possible.
- I do not believe that the points advanced by Ms Gallafent vitiate the District Judge's exercise of his discretion as so summarised. This Court has made it clear that, notwithstanding the importance attached in the guideline cases to a systematic approach being taken to the factors identified in rule 3.9, a decision is not automatically bad in law because they have not been individually set out and considered: see, e.g., Khatib v Ramco International  EWCA Civ 605. In my view it is clear that DJ Avent did in the present case "consider all the circumstances", including such of the particular rule 3.9 factors as were relevant in the (rather unusual) circumstances of the present case. As for Ms Gallafent's two specific points, I take them in turn.
- As regards point (1), I do not believe that the Claimant's failure to serve Particulars of Claim timeously can fairly be described as "intentional"; he did not serve them because he did not believe that the claim form had been served.
- As for point (2), as Ms Webb pointed out, the question on which the District Judge found against the Claimant namely whether he had shown a good reason for failing to serve the claim form by July if, as he believed, it had not already been served is not the same as the question with which we are concerned here namely whether he had a good explanation for the failure to serve Particulars of Claim if, contrary to his belief, the claim form had been served in March. The latter failure was the result of his failure to appreciate that service by the Court in breach of rule 6.4 (1) (b) was nevertheless effective, for which DJ Avent evidently believed there was some excuse. A strict logician might say that the fact that the Claimant had acted unreasonably in the situation that he thought he was in cannot be held against him if in fact he was not in that situation at all. In fact such an approach may be over-strict: for myself, I would have thought that the delay and confusion caused by the Claimant's misguided attempts to obtain an extension were part of the circumstances which the District Judge was entitled to take into account in deciding the question before him, even though they are not covered by head (d). But it does not follow that they should have been decisive. DJ Avent was entitled to take the view that, however unsatisfactory the conduct of the Claimant or his solicitors in that respect, it was outweighed by the reasons for granting permission which he gave.
- For those reasons, and despite the clear and forceful submissions of Ms Gallafent, I would allow the appeal and restore the order of DJ Avent. The effect is that a further hearing will need to be arranged before him both to consider the question of the costs before him, which he deferred pending the outcome of the appeal to the Judge, and to give case management directions.
- Since the Claimant has at present no legal advice, I think it right to state explicitly although to lawyers this will be obvious that this appeal was concerned entirely with the procedural issue; and the decision, if my Lords agree, that the case must be allowed to proceed implies no view whatever about the substantive merits of the claim.
- I should also record that on 4 April Whimsters wrote a letter to the Court explaining that although they were no longer on the record Mr Whimster, the principal of the firm, had been present at the hearing before us and felt obliged, he said, as an officer of the Court to draw our attention to certain errors in the judgment of DJ Avent which were relevant to the appeal but which Ms Webb, who had only been instructed at short notice, had not identified. A thirteen-page witness statement from Mr Whimster was enclosed, which itself exhibited a substantial bundle of inter-solicitor correspondence (all or most of which was before the Court in any event). Mr Whimster says in terms at para. 3 of the statement that it is not made "on the instructions of Mr Stoute" though rather confusingly Mr Stoute has signed a copy of the covering letter to say that he has "read and approved" it. A brief perusal reveals that most of it is concerned with matters of argument and not evidence, and mostly on questions of peripheral if any relevance to the issues on the appeal. Farrers have written to the Court asking that no account be taken of Mr Whimster's statement. Neither I nor my Lords have done so. Whimsters had no locus to seek to put in further evidence or submissions: they are neither a party nor on the record for the Claimant. Even if the letter and witness statement were to be treated as an application by Mr Stoute, no good reason has been shown for this Court taking the wholly exceptional course of admitting new evidence after the conclusion of the hearing.
Lord Justice Tomlinson:
- I agree.
Lord Justice Rimer:
- I also agree.
Copyright Policy |
Donate to BAILII