MYTHS ABOUT PROCEDURE: THE DATE FOR SERVICE IS NOT CALCULATED FROM THE DAY THE COURT RECEIVES THE CLAIM FORM: IT IS CALCULATED FROM THE DATE OF “ISSUE”

 In an earlier post on limitation myths I recounted how I often received phone calls from worried solicitors who feared they had missed a limitation period. The papers had been received by the court within the period, the date of issue was later.  This “myth” is easily resolved.  The relevant date for limitation purposes is the date of receipt by the court. However there have been several recent enquiries about how this affects the date of service.  People were concerned (and in one case counsel had advised – albeit informally) that the date of service ran from the date of receipt by the court.  If this is being propounded it is another myth.  The date of service is calculated from the date of issue and not the date of receipt.

 

 

 

THE RULES

CPR 7.5 states that the four month period runs from the date of issue.

“7.5

(1) 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.”

 

THE PRACTICE DIRECTION

The difference between the date of issue and the relevant date for limitation purposes is recognised in the Practice Direction (PD7). There is a difference between the date of issue and the date of receipt.

“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 purposes 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.

5.3  An enquiry as to the date on which the claim form was received by the court should be directed to a court officer.

5.4  Parties proposing to start a claim which is approaching the expiry of the limitation period should recognise the potential importance of establishing the date the claim form was received by the court and should themselves make arrangements to record the date”

THE CASE LAW

St Helens Metropolitan Borough Council –v- Barnes  [2006] EWCA Civ 1372.

“18. 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.”

[The date of receipt of the claim form is now recorded on the claim form]

IF YOU ARE LEAVING THIS TO THE LAST MINUTE YOU ARE EITHER BRAVE, OR FOOLHARDY

My main aim, however, is to strongly discourage you from leaving service to the date when this difference matters.  I could point you to one of the many posts on this blog where claimants have come to grief in relation to late service of a claim form.  Almost always this is because it has been left to the last moment.

RELATED POSTS: SERVICE OF THE CLAIM FORM