MYTHS ABOUT LIMITATION 3: THE DATE OF ISSUE FOR LIMITATION IS THE DATE ON THE CLAIM FORM
Once or twice a month I receive a phone call from practitioners in a panic. They sent the claim form to court in good time but the date of issue is outside the limitation period. Further some defendants still take the point that the action is limitation barred by referring to the date of issue. It is not often that myths can be dispelled so quickly.
FOR LIMITATION PURPOSES THE RELEVANT DATE IS THE DATE OF RECEIPT
Anyone with this concern needs to read St Helens Metropolitan Borough Council –v- Barnes [2006] EWCA Civ 1372. This clearly states that for limitation purposes the relevant date is the date of receipt of the papers by the court, not the later date of issue.
THE JUDGMENT
-
I start simply by looking at the words used in the statute and the rules. I approach them by expecting to find the expiry of a limitation period fixed by reference to something which the claimant has to do, rather than something which someone else such as the court has to do. The time at which a claimant “brings” his claim form to the court with a request that it be issued is something he has to do; the time at which his request is complied with is not because it is done by the court and is something over which he has no real control. Put another way one act is unilateral and the other is transactional. Looked at in this way I do not agree with the judge or Mr Norman that in this context the verb “to bring” has the same meaning as the verb “to start”. The 1980 Act can perfectly properly be construed so that in the context of the CPR a claim is brought when the claimant’s request for the issue of a claim form (together with the court fee) is delivered to the court office. Paragraph 5 of the Practice Direction gives sensible guidance to ensure that the actual date of delivery is readily ascertainable by recording the date of receipt.
-
This construction accords with the approach taken in the pre CPR cases. The claimant is given the full period of limitation in which to bring the claim and does not take the risk that the court will fail to process it in time. Mr Norman had to concede that his argument meant that if there was a three month strike or the court offices were closed for some other unforeseen reason for a long time, the claimant would take the risk that his claim would become statute barred because it had not been started in time in accordance with rule 7.2. This would be unjust. Resort to the inherent jurisdiction as in Riniker would not I think provide an adequate or satisfactory remedy, not least because the County Court does not have the inherent jurisdiction invoked in that case. Nor does section 33 provide an answer because it only applies to claims for personal injuries and not to other types of claim where the periods of limitation are absolute.
THIS DOESN’T MEAN THAT THE FOUR MONTH PERIOD FOR SERVICE STARTS AT THE DATE OF RECEIPT
Defendants sometimes argue that the date for service runs from the date of receipt by the court. This usually follows after the disappointment of finding out that the action is not, in fact statute barred. However the date of service is determined by the date of issue, which is clearly marked on the claim form.
-
The date of issue of the claim form fixes the time within which the proceedings have to be served (rules 7.5 and 7.6). A defendant can see from the claim form whether or not he has been served in time. He will not be able to see when the request to issue the claim form was received by the court, but if the date of issue is outside the limitation period this will be apparent and the Practice Direction (paras. 5.2 – 5.4) is designed to ensure that anyone enquiring will be able to discover the date of receipt. There is a measure of uncertainty about this but not in my judgment sufficient to warrant a different construction of the statute.
A WARNING
Nothing in this post should be seen as support for any practice of leaving issue until the very last minute. I suspect many, many actions are received just within the limitation period. If for some reason there is an error, a postal problem, or some other issue arises, this can lead to profound problems.