“THIS CASE SHOULD ONCE AGAIN SERVE AS A REMINDER TO LITIGANTS THAT LEAVING THE ISSUE OF A CLAIM FORM TO THE ELEVENTH HOUR OF LIMITATION IS AN EXTREMELY RISK APPROACH TO TAKE AND SHOULD BE AVOIDED AT ALL COSTS”: ISSUE AND THE ELECTRONIC WORKING SYSTEM

July 27, 2021 · by · in Applications, Limitation

The decision of Deputy Master Grimshaw in ABC & Ors v The London Borough of Lambeth [2021] EWHC 2057 (QB) is, I think, the first to consider the question of the date of issue in the Electronic Working System. It is also another example of the dangers of leaving issue until the very last minute.

One Day Left, Note, Day, One, Memo

“Whilst I have reached the above conclusions, this case should once again serve as a reminder to litigants that leaving the issue of a claim form to the eleventh hour of limitation is an extremely risky approach to take and should be avoided at all costs.”

THE CASE

The claimant issued proceedings using the Electronic Working System.  It was lodged at 16:15 hours on the 17th February 2021.  Prior to lodging an application that the claimants’ names be anonymised was  made.  An email was sent to the court the following day asking that the claim form be re-submitted with a sealed copy of the anonymity order.  The claim form was subsequently submitted.

 

THE LIMITATION ISSUE (IT MUST HAVE BEEN VERY CLOSE)

It appears that these proceedings were served very close to limitation. The defendant started making enquiries as to the precise date that “issue” took place.   There was an argument as to when, precisely, the claim form was issued on the 18th and bore the date of the 19th.

THE JUDGMENT ON THIS ISSUE

The Deputy Master found that proceedings had been issued on the 17th February 2021.  The court was asking administrative questions and any deficiencies in procedure were not sufficient to prevent proceedings being regarded as “issued.”
When is a claim form issued according to PD 51O?
    1. Paragraph 5.4(1) of the PD is clear that, where the payment of a court fee is required to accompany a document, such fee being payable when a claim form is issued, the date and time of filing on EW will be deemed to be the date and time at which payment of the court fee is made using EW.
    1. Paragraph 5.4(2) of the PD states that the date and time of payment will also be the date and time of issue for all claim forms and other originating processes submitted using EW. This is supported by the guidance within the QBG.
    1. As such, the starting point is that a claim form is deemed to be issued at the date and time of payment of the relevant court fee on the EW platform.
    1. This starting point is caveated by paragraphs 5.4(5) and 5.4(6), in that:
i) The date and time of issue of a document submitted will not be delayed by ‘Acceptance’, unless the submissions fails ‘Acceptance’ because the filing error is more serious than an error of procedure, or the Court orders that it has failed Acceptance for some other reason.
ii) If the submission fails ‘Acceptance’, notice of the reasons for failure will be given to the party on that party’s EW online account and, if the submission was of a claim form, it will be deemed not to have been issued.
    1. Paragraph 5.4(7) sets out that, where a claim form fails ‘Acceptance’, the fee will be refunded and a corrected claim form will have to be re-submitted and the court fee paid again in order for proceedings to be issued, with a new date and time of issue generated.
Did the Claim Form in this case fail Acceptance such that paragraphs 5.4(5) to (7) of the PD apply?
    1. This really is the central dispute between the parties. In my judgment, the Claim Form did not fail Acceptance in this case such that these paragraphs of the PD apply.
    1. When the Claim Form and associated documents were submitted using EW on 17th February 2021, the relevant court fee was paid and an automated notification was received by the Claimants’ legal representatives confirming receipt of the documentation.
    1. The Claim Form was not ‘Accepted’ upon review by the Court staff for a number of reasons, namely:
i) The Claimants’ names were anonymised before an anonymity order had been made by the Court.
ii) The Court details had not been completed.
iii) The appropriate court fee had not been entered on to the Claim Form, albeit had been paid via Electronic Working.
iv) The Defendant’s details had not been properly submitted via EW.
    1. In email correspondence between the Court and the Defendant’s solicitor on 20th May 2021, Court staff confirmed that:
i) The Claim Form was filed and a court issue fee paid on 17th February 2021.
ii) The papers were not accepted initially but not for reasons pertaining to the validity of the Claim Form, they were due to administrative reasons as certain information had been omitted from the Claim Form.
iii) The original payment made on 17th February 2021 was valid and no further payment was required when the documents were re-filed.
iv) Whilst the Claim Form was actually issued on 19th February 2021, the Claimants’ representatives could apply for the same to be backdated.
    1. The Defendant submits that the issue as to whether a claim form is ‘Accepted’ or not is a binary one, i.e. if the Court staff do not ‘Accept’ the document at the point of their review, the document is rejected and thus fails ‘Acceptance’. The Claimants submit that the process is not binary; a document filed can either be ‘Accepted’, rejected or a party can be asked to remedy any procedural defects and re-file an amended document without failing ‘Acceptance’.
    1. In my judgment, the Claimants are correct that Court staff can and do review documents that are submitted via EW and then have the power to refuse to include a document within the EW Case File for the reasons set out in paragraph 5.3(3). Where this approach is taken, paragraph 5.3(4) states that the submission will not have failed ‘Acceptance’, but the party will have to upload the document again in accordance with instructions given by the Court staff in order for the document to be properly included on the EW Case File.
    1. The Defendant essentially argues that the filing of a claim form with the Claimants’ names anonymised is such a fundamental error of procedure that it makes the Claim Form itself invalid and as such the original Claim Form in this case would not fall under the provisions of paragraph 5.3(3), which are designed to remedy much more minor defects, such as pages being scanned upside down or the like. I do not accept that submission. Paragraph 5.3(3) envisages that a claim form may be incomplete but still be capable of ‘Acceptance’ following it being uploaded again, presumably with any of the previously incomplete details provided.
    1. It would be usual practice to submit an application for an anonymity order with and at the same times as a claim form so that they could be dealt with together. However, it seems to me that the Claimants should not be disadvantaged by submitting an application for an anonymity order before a claim form.
    1. In my judgment, the Court staff in this case recognised that the Claim Form was incomplete and thus asked the Claimants’ legal representative to file a revised version of the Claim Form as is envisaged by paragraph 5.3 of the PD.
    1. Furthermore, even if paragraph 5.3 of the PD does not apply to this case, the submission did not fail ‘Acceptance’ at that point. Even if the Claim Form was not ‘Accepted’, paragraph 5.4(5) of the PD states that the date and time of issue of a document will not be delayed by ‘Acceptance’ unless the submission fails ‘Acceptance’ because the filing error is more serious than an error of procedure, or the Court orders that it fails Acceptance for some other reason. In my judgment, this case does not fall under paragraph 5.4(5) of the PD because the error was not more serious than an error of procedure and it is common ground that the Court did not order that the documents had failed ‘Acceptance’ for some other reason.
    1. The court fee was not refunded (pursuant to paragraph 5.4(7) of the PD) because the Claim Form did not fail ‘Acceptance’, nor should it have done. The mistakes made by the Claimants were errors of procedure but not more serious than that, in my judgment, nor did the Court order that the Claim Form had failed ‘Acceptance’. They were capable of being remedied and instructions were appropriately given to do so. No further court fee was required when the documents were re-filed.
When was the Claim Form in this case issued?
    1. Given that I have found that the court fee was paid on 17th February 2021 and that the Claim Form did not fail ‘Acceptance’ for the reasons set out in paragraph 5.4(5) of the PD, it follows that the deemed date of issue is 17th February 2021.
The Court’s power to remedy an error of procedure
    1. If I am wrong in my analysis of the rules above, the Court has a power pursuant to CPR 3.10(b), as noted in paragraph 5.3(2) of the PD, to remedy an error of procedure made while using EW. In this case, given the attempts to file the Claim Form and associated documentation on 17th February 2021, the payment of the relevant court fee on the same date, the lack of refunding of the court fee, the refiling of the documents via EW on 18th February 2021 as requested by the Court staff, the instructions given by the Court staff and the lack of a need to pay a subsequent court fee on re-filing, I would exercise the Court’s discretion to remedy the errors of the incomplete Claim Form as it is just to do so when considering the overriding objective and given my finding that this was not a significant or serious failure. As such, the document did not or would not fail ‘Acceptance’.
Conclusions
    1. For the reasons set out above, I am satisfied that the Claim Form was issued on 17th February 2021 and was brought for the purposes of limitation on the same date. I also order that the Claim Form be endorsed as issued on 17th February 2021.
    1. If my analysis of the relevant procedural rules is incorrect, I would still exercise the Court’s discretion to remedy an error of procedure pursuant to CPR 3.10(b) and paragraph 5.3(2) of the PD, such that the Claim Form was not deemed to have failed ‘Acceptance’ and thus was or is deemed to have been issued on 17th February 2021.
    1. Whilst I have reached the above conclusions, this case should once again serve as a reminder to litigants that leaving the issue of a claim form to the eleventh hour of limitation is an extremely risky approach to take and should be avoided at all costs.
    1. The parties are encouraged to agree any consequential orders but I will deal with any matters remaining in dispute at the hearing listed to hand down this judgment.

 

 

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