I am grateful to barrister Christopher Johnson for sending me a copy of the judgment of HHJ Ralton in the case of Ellis -v- The Chief Constable of Avon & Somerset Constabulary (HHJ Ralton, 16th November 2021). The judge was considering the issue of whether service of particulars of the claim was in time if they were served by post at the end of the period for service, alongside the claim form. On appeal this decision was decided in the claimant’s favour. However this remains a very moot point. In the absence of a definitive Court of Appeal judgment on this issue any prudent claimant would ensure that service of the particulars took place within the four month period.
A copy of the report is available here. F61YJ238 Ellis v CCAS Police final Judgement 16.11.21 (1)
THE CASE
The claimant brought a civil action against the defendant. The action was issued at the end of the limitation period. The claim form was served, just within the four month period, by sending it by first class post. The Particulars of Claim accompanied the claim form.
THE ISSUE
The rules state that the date for service of the claim form is the date it is placed in the post. There is no express rule in relation to service of the Particulars of Claim. The Particulars have to be served within the four month period for service. The question was whether the Particulars of Claim were served within the relevant period.
THE DECISION OF THE DISTRICT JUDGE
The District Judge struck out the claimant’s claim, on the grounds that the Particulars were not served within time. The claimant’s application for a retrospective application of time was refused.
THE CLAIMANT’S APPEAL
HHJ Ralton allowed the claimant’s appeal. It was held that the rule relating to service of the claim form applied to service of the Particulars of Claim. The judgment contains a detailed discussion of the case law on the topic. The judge then concluded the issue in favour of the claimant’s construction.
47.District Judge Watkins was faced with civil procedure rules that arguably conflict
with each other and arguably conflicting authorities of differing weights.
However, the District Judge does not seem to have been referred to Oran.
Unfortunately there does not seem to have been a reported case which
determined as an issue in that case the question whether particulars of claim
sent in the same envelope as a claim form are served on the date of posting
(the step or act of serving) or on the date of deemed service.
48.In my judgment, if one reads the Rules and applies the correct context, it is
apparent that distinction needs to be drawn at times between service meaning
dispatch and service meaning delivery.
49.In my judgment service of the particulars of claim within the meaning of CPR
7.4 means the process of serving as applied to a claim form namely dispatch
and does not mean a deemed service date. The deemed service date (delivery)
remains important for setting further procedural deadlines.
50.I cannot see how Venulum assisted the District Judge as he says or that there
is a binding point of law therein. Those cases which concerned the claimant
thinking that the rules gave him an additional 14 days to serve the particulars
of claim even though the period of validity of the claim form was exhausted are
of some assistance and I have to observe that I consider Master Matthews’
comments in DB UK Bank to support the Claimant in this case rather than the
Defendant.
51.I do not find any real authority in support of the Defendant’s arguments whereas
I consider that the other authorities, notably T&L Sugars, Paxton Jones and
Oran to support the Claimant’s argument.
52.Accordingly I would allow the appeal.
APPEAL ON THE EXERCISE OF DISCRETION
The judge found in favour in relation to the first ground of appeal. However it was clear that, if the judge was wrong on this issue, then the decision not to grant relief from sanctions, would have remained in place.
53.If I am right about Ground 1, Ground 2 is redundant but a higher court may
decide that I was wrong on Ground 1 so I address Ground 2 in any event.
54.Therefore the de facto position would be as follows:
(a) The Claimant was out of time for serving his particulars of claim;
(b) At the (first) hearing before District Judge Watkins it was made clear to the
judge that the Claimant was positively not making an application for relief
from sanctions (see paragraph 56 of the judgment);
(c) The application for relief was made on 10
th August 2020
(d) The application was supported by a statement from Mr Hagan; no attempt
was made to explain the delays.
55.It appears to be common ground that the District Judge took the correct
approach which was to consider relief from sanction within the meaning of CPR
3.9 applying the ‘Denton’ criteria per Denton v TH White Ltd [2014] EWCA Civ
906 namely in the following order:
(1) Assess the seriousness and significance of the breach
(2) Why the default occurred
(3) Consider all the circumstances of the case including the need for litigation
to be conducted efficiently and at proportionate cost and to enforce
compliance with rules, practice directions and orders.
56.The only point taken by the Claimant in this appeal is with respect to stage 3
and the District Judge’s approach with respect to the balance of prejudice.
57.However, it must be observed that:
(1) There was a serious and significant breach as found by the District Judge
in paragraph 10 of his judgment;
(2) The default occurred because the Claimant did not understand the rules
(paragraph 14 of the judgment)
58.So far as stage 3 is concerned the District Judge directed himself properly that:
“there is a balance to be struck between the prejudice to the parties”
see paragraph 15 where he accepts the serious impact on the Claimant if relief
was not granted and public’s interest in a court scrutinising alleged wrongdoing
on the part of the police.
59.At paragraph 17 of his judgment the judge explores the harm caused to the
quality of evidence by reason of delay.
60.At paragraph 20 it is apparent that the District Judge took into account all of the
circumstances of the case. It seems the only factor in favour of the Claimant
was the prejudice he would suffer if relief was refused; every other factor was
in the Defendant’s favour.
61.Ground 2 of the appeal reads as follows:
“The decision of the Learned Judge not to extend time for service of the
Particulars of Claim was wrong because the Learned Judge, considering all
the circumstances of the case, placed undue weight on the prejudice to the
Defendant resulting from the passage of time since the cause of action accrued”
62.In my judgment this ground is simply not made out on any reading of the
judgment of the District Judge; he carried out the correct exercise in a careful
and correct way and reached a decision that he was entitled to reach on the
material before him.
63.Accordingly I dismiss this ground of appeal.
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