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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Plymouth City Council v ABC [2022] EWHC 1670 (Ch) (06 July 2022) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2022/1670.html Cite as: [2022] EWHC 1670 (Ch) |
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BUSINESS AND PROPERTY COURTS IN BRISTOL
BUSINESS LIST (ChD)
2 Redcliff Street, Bristol, BS1 6GR |
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B e f o r e :
(sitting as a Judge of the High Court)
____________________
PLYMOUTH CITY COUNCIL |
Claimant |
|
- and - |
||
ABC |
Defendant |
____________________
Spencer Keen (instructed by Plymouth City Council Legal Department) for the Claimant
The defendant in person
Applications dealt with on paper
____________________
Crown Copyright ©
This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 am on 6 July 2022.
HHJ Paul Matthews :
Introduction
Procedure
The first application for anonymity
The second application for anonymity
"on the following grounds and changed circumstances:
- Breach of procedure
- Change to Civil Procedure Rule 39.2(4)
- Decline in my health
- Other supporting evidence – physical threat
- Other supporting evidence – impact on mental health
- Further comment – information already in the public domain
- Further comment – no other anonymity order in place
- Further comment – extent of anonymity order requested
- Further comment – proper administration of justice
- Further comment – actual and perceived threat
- Further comment – case of Zeromska-Smith v United Lincolnshire Hospitals
- Further comment – balance".
The law relating the second applications
"The defendants are seeking a rehearing on evidence which, or much of which, so far as one can tell, they could have adduced on the earlier occasion if they had sought an adequate adjournment, which they would probably have obtained. Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter."
"55. … There is a public interest in discouraging a party who makes an unsuccessful interlocutory application from making a subsequent application for the same relief, based on material which was not, but could have been, deployed in support of the first application. … "
"39. … The rule [ie 3.1(7)] is apparently broad and unfettered, but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion. … [T]he jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated."
The status of the defendant
"It is of note that I am a litigant in person. I am not familiar with the Civil Procedure Rules.".
That is of course correct, in the strict sense that she does not have a solicitor acting for her on the record. However, as the Supreme Court emphasised in Barton v Wright Hassall [2018] 1 WLR 1119, where there are no special rules in the CPR applying to litigants in person, the rules do not in any relevant respect distinguish between represented and unrepresented parties. The same procedural rules apply to everyone, whether legally represented or litigant in person.
The grounds of the second application
Breaches of procedural rules
CPR rule 39.2(4)
Decline in health
Physical threats to the defendant
Impact on the defendant's mental health
Information in the public domain
Anonymity in other proceedings
Extent of the order sought
The proper administration of justice
Actual and perceived threats
Zeromska-Smith v United Lincolnshire Hospitals
Balancing competing rights
Conclusion
The substantive application of 25 August 2021
The law
"(1) A defendant who wishes to –
(a) dispute the court's jurisdiction to try the claim; or
(b) argue that the court should not exercise its jurisdiction
may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.
(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.
(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court's jurisdiction.
(4) An application under this rule must –
(a) be made within 14 days after filing an acknowledgment of service; and
(b) be supported by evidence.
(5) If the defendant –
(a) files an acknowledgment of service; and
(b) does not make such an application within the period specified in paragraph (4),
he is to be treated as having accepted that the court has jurisdiction to try the claim.
(6) An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision including –
(a) setting aside the claim form;
(b) setting aside service of the claim form;
(c) discharging any order made before the claim was commenced or before the claim form was served; and
(d) staying the proceedings.
(7) If on an application under this rule the court does not make a declaration –
(a) the acknowledgment of service shall cease to have effect;
(b) the defendant may file a further acknowledgment of service within 14 days or such other period as the court may direct; and
(c) the court shall give directions as to the filing and service of the defence in a claim under Part 7 or the filing of evidence in a claim under Part 8 in the event that a further acknowledgment of service is filed.
(8) If the defendant files a further acknowledgment of service in accordance with paragraph (7)(b) he shall be treated as having accepted that the court has jurisdiction to try the claim.
(9) If a defendant makes an application under this rule, he must file and serve his written evidence in support with the application notice, but he need not before the hearing of the application file –
(a) in a Part 7 claim, a defence; or
(b) in a Part 8 claim, any other written evidence."
"27. … It is well known that in the context of challenges to jurisdiction, reference to the Court's jurisdiction can be a shorthand for two different concepts: one is the court's jurisdiction to try the claim on its merits; the other is the court's exercise of its jurisdiction to try the claim (see, for example Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203, [2008] 1 WLR 806 at [28]). Leaving aside cases covered by the Lugano Convention and recast Brussels 1 Regulation, service of process is the foundation of the court's jurisdiction to entertain a claim in personam, and accordingly the court has such jurisdiction only where the defendant is served, in England or abroad, in the circumstances authorised by, and in the manner prescribed by, statute or statutory order (typically the Civil Procedure Rules): see Dicey Morris and Collins The Conflict of Laws 15th edn. Rule 29. Where there has been no such service, the court does not have jurisdiction. Where such jurisdiction has been established by service of process, the Court may nevertheless decline to exercise its jurisdiction, for example on grounds of forum non conveniens or lis alibi pendens.
28. The two types of challenge are logically and juridically separate and distinct. Moreover they typically involve different forms of relief. Where there has been no valid service necessary to found in personam jurisdiction, the court will set aside service and set aside the claim form. On the other hand where the challenge is to the exercise of jurisdiction on grounds of forum non conveniens, the appropriate relief is usually a stay of proceedings, which is capable of being lifted, if appropriate, in the light of subsequent events."
"23. Mr Exall submits that CPR 11 has no relevance in the present context. He says that no issue of 'jurisdiction' arises here. He argues that the claimants are in difficulty not because the court does not have jurisdiction to determine the claim, but because they have failed to comply with the rules of court as to service. A defendant who seeks to set aside an order made without notice or to argue that the claim form was served out of time is not challenging the court's jurisdiction, but is merely applying the procedural rules. The court does have jurisdiction to deal with a claim even where the claim form is served out of time. For example, it has jurisdiction retrospectively to extend the time for service under CPR 7.6(3) and to make an order dispensing with service under CPR 6.9. Finally, Mr Exall draws attention to the definition of 'jurisdiction' in CPR 2.3: it means 'unless the context requires otherwise, England and Wales and any part of the territorial waters of the United Kingdom adjoining England and Wales'.
24. In our judgment, CPR 11 is engaged in the present context. The definition of 'jurisdiction' is not exhaustive. The word 'jurisdiction' is used in two different senses in the CPR. One meaning is territorial jurisdiction. This is the sense in which the word is used in the definition in CPR 2.3 and in the provisions which govern service of the claim form out of the jurisdiction: see CPR 6.20 et seq.
25. But in CPR 11(1) the word does not denote territorial jurisdiction. Here it is a reference to the court's power or authority to try a claim. There may be a number of reasons why it is said that a court has no jurisdiction to try a claim (CPR 11(1)(a)) or that the court should not exercise its jurisdiction to try a claim (CPR 11(1)(b)). Even if Mr Exall is right in submitting that the court has jurisdiction to try a claim where the claim form has not been served in time, it is undoubtedly open to a defendant to argue that the court should not exercise its jurisdiction to do so in such circumstances. In our judgment, CPR 11(1)(b) is engaged in such a case. It is no answer to say that service of a claim form out of time does not of itself deprive the court of its jurisdiction, and that it is no more than a breach of a rule of procedure, namely CPR 7.5(2). It is the breach of this rule which provides the basis for the argument by the defendant that the court should not exercise its jurisdiction to try the claim."
"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."
"i) Lord Brown's dictum [in Philips v Symes (No 3) [2008] 1 WLR 180, [31]] can be taken as an indication of the view of the Judicial Committee that CPR 3.10 is a beneficial provision to be given very wide effect;
ii) This enables it to be used beneficially where a defect has had no prejudicial effect on the other party and prevents the triumph of form over substance;
iii) The key in considering whether a defect can be cured under this provision is to analyse whether there is "an error of procedure" which might otherwise invalidate a step taken in the proceedings. Thus the benefit of CPR 3.10 will be less easy to obtain where there has been no attempt at a procedural step (eg a complete failure of service) or the step taken is not permitted by or within the rules at all."
The submissions in summary
Challenges to the existence of jurisdiction
Irregular service of proceedings
Service of the claim form by email
Statements of truth in the statements of case
Serious inaccuracies in the documents
"Where any of these Rules or any practice direction requires a document to be signed, that requirement shall be satisfied if the signature is printed by computer or other mechanical means."
The misspellings of the defendant's first name and the transposition of claimant and defendant in the order are regrettable, but they are (with respect) rather less important in the context of the whole litigation. The important thing is that no-one is misled. It is obvious what has happened.
"is such that it is likely to have significant influence on proceedings. The error is undeniably advantageous to the [claimant]. It significantly prejudiced my case."
"Ms Searle knew I was employed at the time the Application Notice was completed. I do not believe she had an honest belief in the truth of the statement she made. I believe that the 'error' was advantageous to the [claimant]'s case. I believe that had the error not been made, the [claimant] would have more difficulty putting forward their case for an emergency hearing."
Challenges to exercise of jurisdiction
Breach of duty of care to the defendant to make reasonable adjustments
The claimant's actions were disproportionate
Breaches of the CPR amounting to abuse of process
Conclusion
Postscript