“A DISMAL CATALOGUE OF CONFUSION AND ERROR”: SERVICE OF THE CLAIM FORM, COURT ERRORS AND OTHER MISHAPS

An article in the Law Society Gazette this week reported a denial by the Ministry of  Justice that the civil court system had been affected by austerity.  Perhaps the MOJ should read the decision in Stoute -v- LT Operations Ltd [2014] EWCA Civ 657

 THE FACTS

The claimant, a professional tennis player, brought a claim against the defendant on the basis that they had discriminated against on the grounds of his race.

THE PROCEDURAL HISTORY

Underhill LJ described the proceedings as “a dismal catalogue of confusion and error by both the Court administration and the Claimant’s then solicitors”. There was a long procedural history between the parties which included a number of errors.

• In February 2012 the claimant, after an unsuccessful attempt to have the claim form issued in the High Court, Took it to the Central London County Court. The court staff informed him, wrongly, that it could not be issued there and had to be sent to the Salford Business Centre.

• The court accepted the form for transmission and enclosed was a letter setting out that the Claim Form was to be issued for solicitor service.

• The Salford Business Centre issued the claim form and erroneously sent the Claim Form to the Defendant on the 11^th March.

• On the 21^st March 2012 the defendant’s solicitors wrote to the Claimant’s solicitors asking them to note their interest. The Claimant’s solicitors replied saying that the Claim Form had been served contrary to their instructions and that it had been referred back to the Central London County Court and put right and that it would be served within four months of issue by solicitor service.

• The claimant’s solicitors complained to the Centre and persuaded a clerk to amend the issue date from 8^th March 2012 to 10 February 2012 as the solicitors thought that this would protect them from arguments concerning limitation. They also had the issue date changed to 14^th May 2012 and made various other amendments.

 THE EXTENSION OF TIME FOR  SERVICE

• In May 2012 the claimant also made a without notice application under Rule 7.6 for an extension of time for serving, until the 14^th September 2012.

• This was rejected by the District Judge because the statement of truth on the application was not signed, and the Judge pointed out that it was in any event premature (the claimant still had until the 8^th July 2012 to serve the Claim Form.)

• The claimant then lodged signed copy of the application; however the Court then lost the file. The application was not considered until the 29^th August 2013. But permission was given for an extension up until the 16^th November 2013.

• The defendant applied to have the extension set aside. The claimant served the Claim Form along with the Particulars of Claim, but as a precaution against the Defendant’s application to set aside being successful they also commenced fresh proceedings in December 2012. The brief details on the Claim Form and the Particulars attached were identical to those in the first set of proceedings.

 WAS SERVICE BY THE COURT EFFECTIVE SERVICE WHEN A SOLICITOR HAD ASKED IT NOT TO SERVE?

The District Judge heard the defendant’s application to set alongside the Claimant’s extension. Both parties proceeded on the basis that the original service in March 2012 by the Court had been ineffective. But DJ Avent found that service by the Court in March had been effective service, notwithstanding the claimant’s assertion to the contrary. He then proceeded to make an order retrospectively extending the time for service of the Particulars of Claim and allowed the claim to continue on the basis of the amended claim form.

 THE DEFENDANT’S APPEAL

The defendant appealed the decision, which was allowed as Mitchell J found that the service by the Court in March 2012 had been a nullity because it was served contrary to the Claimant’s notification. He also declined to grant the Claimant an extension of time for service and the claim was formally dismissed.

 THE DECISION OF THE COURT OF APPEAL

The claimant subsequently appealed Judge Mitchell’s decision relying on CPR 6.4 (1) and Rule 3.10.

 WAS SERVICE OF THE CLAIM FORM EFFECTIVE?

The principal question for the Court of Appeal was 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.

The Court of Appeal found that it did.

“36. 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 [2005] 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) [2008] UKHL 1” 

37. 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).” 

8. Ms Gallafent submitted that rule 3.10 could not apply in the present case for three reasons, which I take in turn.
9. 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. 
10. 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). 
11. 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.
12. 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 [2001] 3 All ER 784 and Totty v Snowden [2001] EWCA Civ 1415, [2002] 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)).
13. 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. 
14. 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.

 SHOULD THE CLAIMANT HAVE BEEN GIVEN AN EXTENSION FOR SERVICE OF PARTICULARS OF CLAIM?

 The defendant argued that even if Rule 3.10 did come into play DJ Avent had been wrong to extend time. He had made no explicit reference to Rule 3.9 (the pre-Jackson version). Specifically he had disregarded the fact that the claimant’s failure to serve the Particulars of Claim was intentional and that there was no good reason for the failure.

The Court of Appeal rejected the defendant’s arguments. They found that DJ Avent had considered all the circumstances, the claimant’s failure was not intentional and there was a reason for the failure. The fact that he had not individually set out and considered all the factors identified in rule 3.9 did not lead to the decision being automatically bad in law.

THE OBSERVATIONS OF THE DISTRICT JUDGE: PROBLEMS AT THE COURT OFFICE

What is interesting in this case is the Court of Appeal’s recitation of the judgment of the District Judge, stating, expressly, that it reflected what went on the “real world” .

5. 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.
6. 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?”

THE OVERRIDING OBJECTIVE AND SENSIBLE CASE MANAGEMENT

Also note this part of the District Judge’s judgment (again cited in full by the Court of Appeal).

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.

 CONCLUSION: BE CAREFUL WITH SERVICE

• Be wary in relation to issues relating service of the Claim Form or Particulars. As outlined in my previous post “Delaying Service of the Claim Form: “Dicing with procedural death” many Claimant’s are coming to grief over service points.
• DJ Avent also highlighted the very real reality that Courts are under staffed, under resourced and over worked. Mistakes can happen which are not the solicitors fault. Do not leave service up to the last minute; leave extra time so that problems can be sorted out before expiry of deadlines.
• Read the essential checklist for service – written by practitioners for practitioners.