IS THE CCMCC BREAKING THE LAW ?THE DAMAGES PILOT AND CASES WHERE THE CCMC ARE REFUSING TO ISSUE PROCEEDINGS: WHAT IS THE RELEVANT DATE FOR LIMITATION PURPOSES?

I have come across several examples recently of the CCMCC refusing to issue  claim forms on the basis that proceedings should have been issued online using the Damages Claim Pilot. In every case the papers have been returned wrongfully, the action not falling within Practice Direction 51ZB,  the court in this regard appears to be acting wholly unlawfully. There is a recent Court of Appeal decision that provides some guidance.

“I am firmly of the view that, whatever degree of scrutiny the court staff are permitted, and whatever incremental changes may have been made to the CCMCC’s general powers in the last decade, neither can justify a refusal to issue a claim form, which was itself in proper form. A request by a litigant to issue a claim form is one which he or she is entitled to make. Thereafter, the litigant is completely dependent on the court. His or her legal rights may depend on the timeous issue of that claim form. Accordingly, the court’s primary obligation is to comply with that request. In my view, it would take exceptional circumstances – far beyond the facts of this case – for a court’s refusal to comply with a legitimate request to issue a claim form to be even arguably justified.”

THE SCOPE OF THE PRACTICE DIRECTION

The first point to make is that there are a number of actions that are clearly outside the scope of the Practice Direction.  THE CCMCC simply returns proceedings that clearly fall outside the scope, despite being told in the covering letter that the proceedings are not within the scope of PD 51ZB.  To add insult to injury the covering letter, stating that the papers are being returned, often states that a claimant must inform CCMCC why the Practice Direction does not apply.  The letters from the claimant’s solicitors accompanying the proceedings are clearly not being read.

However, in any event, for the reasons given above it is doubtful whether CCMCC has the power to make these decisions.  It does, itself, appear to be acting unlawfully in addition to acting incorrectly.

THE CONDITIONS FOR ELIGIBILITY

The Practice Direction sets out the relevant rules.

(2) If all of the conditions in sub-paragraph (3) are met—

(a) the claimant’s legal representative must register with My HMCTS and secure access to the DCP before the claim is started; and

(b) the claim must be started using the procedure set out in this Practice Direction.

(3) The conditions referred to in sub-paragraph (1) are—

(a)   the claim is a claim for damages only;

(b)   the claim would not ordinarily follow the Part 8 procedure;

(c)   the claim is not made under one of the provisions of the Consumer Credit Act 1974 specified in CPR PD 7B paragraph 3.1;

(d)  the claimant is represented by a legal representative;

(e)  if an individual, the claimant is aged 18 years or over, or is under 18 and has a litigation friend (in which case a statement of suitability must be provided);

(f)     the claimant is not a protected party within the meaning of CPR 21.1(2)(d);

(g)   the fee for issuing the claim is paid in full using the “Payment By Account” system;

(h)   the claim is conducted in English;

(i)     the claimant does not have in force against them—

(i)       a civil proceedings order;

(ii)      an all proceedings order; or

(iii)    a civil restraint order;

(j)     the claimant believes that the defendant—

(i)     has a postal address for service within England and Wales;

(ii)  if an individual, is aged 18 years or older; and

(iii)  is not a protected party; and

(iv) is not the Crown;

(k) the claim is not one to which Practice Direction 27B applies; and

(l) the claim—

(i) is brought by one claimant against either one or two defendants; or

(ii)  is brought by two claimants against one defendant.

WHAT IF THE COURT’S CONDUCT CAUSES LIMITATION ISSUES

Assuming that the CCMCC has the right to refuse to issue (which is far from clear) it is possible that the simple returning of the papers could lead to limitation issues.  Here we need to consider the recent judgment of the Court of Appeal in Chelfat v Hutchinson 3G UK Ltd [2022] EWCA Civ 455.

THE FACTS IN CHELFAT

The claimant attempted to issue proceedings. The court refused to issue on the basis that the claimant had failed to complete Form N510, in relation to service out of the jurisdiction. The court’s refusal to issue meant that the claimant had limitation issues.

THE CCMCC WAS NOT ENTITLED TO REFUSE TO ISSUE THE CLAIMANT’S CLAIM FORM

The Court of Appeal was clear in its view that the CCMC was not entitled to refuse to issue.  The obligation to serve a form N150 with the claim form did not relate in any way to the issue of the claim form.

“6. Issue 1: Was The CCMCC Entitled To Refuse To Issue The Appellant’s Claim Form In December 2015?

1. 1. I consider that the answer to that question is an unequivocal No. There are three principal reasons for that.

1. 1. First, I consider that the provisions of r.6.34 are straightforward. There are two obligations at r.6.34(1): to file Form N510 with the claim form, and to serve a copy of Form N510 with the claim form. The sanctions for failing to file Form N510 with the claim form are set out in r.6.34(2): the claim form cannot be served until Form N510 was filed, or the court must give permission for service. The rule therefore sets out both the requirement and the sanction, if the claimant does not comply with that requirement.

1. 1. Mr Machell did not accept that straightforward interpretation of the rule. This appeared to be because, on that reading, he did not consider the sanction in r.6.34(2) to be very draconian. I reject that. It is not a reason to avoid a straightforward interpretation of a rule, merely because you do not think much of the sanction. In any event, since the claim form cannot be served until Form N510 is filed, it means that service is prevented; the proceedings are effectively frozen until the rule has been complied with. That seems to me to be an entirely appropriate sanction in all the circumstances, particularly as a claim form must be served within 4 months, or 6 months in the case of service outside the jurisdiction.

1. 1. Mr Machell’s interpretation was to the effect that r.6.34(1) related to unissued claim forms, whilst r.6.34(2) related to issued claim forms. He said, if it was read in this way, that it would be a way of enforcing compliance with the rule in respect of Form N510, and would therefore lead to efficient administration.

1. 1. I reject that interpretation. The rule is manifestly not concerned with the issuing of claim forms. As the District Judge noted, the word “issue” does not appear anywhere in the rule. The rule is solely concerned with filing and serving the claim form and Form N510. It would be to rewrite the rule to introduce an unexpressed sanction, to the effect that a failure to file Form N510 justified the non-issue of the claim form. It would do nothing to ensure compliance with the rule because the sanction (on Mr Machell’s case, the non-issue of the claim form) is not expressly stated: the litigant cannot know that there is a potentially draconian sanction, let alone act on it, if it is not expressed in the rule. Such an approach to the CPR merely encourages unnecessary complexity and satellite litigation.

1. 1. There is nothing in r.6.34 which is concerned with or touches upon the issue or non-issue of the claim form. The rule did not therefore permit CCMCC to refuse to issue the appellant’s claim form. When, in the letter of 17 December 2015, the CCMCC said that r.6.34(2) required Form N510 to be completed “before this claim can be issued”, they were wrong: it does not. Similarly, the District Judge erred when he said at paragraph 29 (see paragraph 15 above) that a claim is only “brought” for limitation purposes if is “a properly constituted claim which satisfies all the procedural requirements”. As I have explained, CPR 6.34 states a “procedural requirement”, but it is a requirement that does not prevent the claim from being properly constituted for the purposes of issuing proceedings.

1. 1. Secondly, there is no authority that would begin to support such a proposition. I have set out at Section 4.1 above some of the cases concerned with Form N510. Those authorities are concerned with filing and serving Form N510, and even detailed arguments about whether or not Form N510 had been correctly filled out. None of those authorities concerns the issue or non-issue of a claim form, and none support the suggestion that r.6.34(1) or (2) could justify the non-issue of the claim form. I note that in all of them the claimant’s failures in respect of Form N510 were not fatal to the continuance of the claim.

1. 1. Thirdly, there is a concern about the power of the CCMCC to refuse to issue the claim form at all. In Barnes, Tuckey LJ said: “the court staff who receive the documents are not performing any judicial function and have no power to reject them.” That therefore raises the wider question on this appeal: was the CCMCC acting outside its powers in refusing to issue this claim form in the first place?

1. 1. This is not an entirely straightforward question for two reasons. First, it was accepted in Barnes, and acknowledged during argument in the present case, that there has to be a degree of scrutiny of the documents by court officials and that, as Tuckey LJ put it, if “the claimant had not delivered anything which could properly be described as a claim form”, it could not be issued. Secondly, it must be accepted that, since Barnes, the powers of court officials have widened; indeed, the CCMCC did not even exist at the time that Barnes was decided.

1. 1. Those qualifications notwithstanding, I am firmly of the view that, whatever degree of scrutiny the court staff are permitted, and whatever incremental changes may have been made to the CCMCC’s general powers in the last decade, neither can justify a refusal to issue a claim form, which was itself in proper form. A request by a litigant to issue a claim form is one which he or she is entitled to make. Thereafter, the litigant is completely dependent on the court. His or her legal rights may depend on the timeous issue of that claim form. Accordingly, the court’s primary obligation is to comply with that request. In my view, it would take exceptional circumstances – far beyond the facts of this case – for a court’s refusal to comply with a legitimate request to issue a claim form to be even arguably justified.

1. 1. For these reasons, therefore, I am in no doubt that the CCMCC should have issued the proceedings when they were requested to do so. They could then have communicated with the appellant to tell her that she needed to file Form N510. The appellant said, and there is no reason to disbelieve this, that if she had been told that she had to fill in the form, she would immediately have done so, particularly as it appears it only required the ticking of one box.

1. In this way, the claim form which should have been issued on or around 11 December 2015 would have been issued within the limitation period. Although it was no fault of the appellant’s that that claim form was not issued, it is now said that her later claim form – only necessitated by the CCMCC’s wrongful refusal to issue the first – was statute-barred and should be struck out. Instinctively, I would say that that would be manifestly unjust. But is that the result of the law and the CPR?

WAS THE ACTION, THEREFORE, BROUGHT WITHIN THE LIMITATION PERIOD ?

Lord Justice Coulson held that it was arguable that the action was brought within the limitation period. He set aside the striking out.

7. Issue 2: Is It Arguable That The Action Was Brought On 11 December 2015?

1. 1. As noted above, the limitation position is frozen, and time stops to run, when an action is “brought”. Barnes and Page v Hewett are authority for the proposition that the date the proceedings were “brought” for the purposes of the Limitation Act can be earlier than the actual date of the issue of the claim form. That position is also reflected in Practice Direction 7A, paragraph 5.1, which provides:

“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.”

1. 1. The working assumption made by both the District Judge and the Judge when considering this matter was that the claim form that was issued in December 2016 was the same as the claim form that should have been issued in December 2015, with one modification: the address in Scotland had been changed to the address in Maidenhead. That must be our working assumption too because, although the appellant said she had a copy of the claim form from December 2015, this court has not seen it. It was not in the bundles with which we were provided. The appellant became agitated when this matter arose during the hearing, saying that she had provided a copy to the respondent on at least one earlier occasion.

1. 1. The precise wording of the December 2015 claim form may ultimately be of importance. So, whilst it is appropriate for this court to proceed on the same working assumption as the District Judge and the Judge, it cannot make any determinative findings about the actual wording of the 2015 claim form. Mr Machell reserves the respondent’s position on that, and he is entitled to do so. However, that does not affect the outcome of the appeal, which is concerned with arguability, not the probability of success.

1. 1. On the assumption that the claim forms are the same, with the only difference being the change of address, a narrow question arose as to whether it could be said that “the claim form as issued” in December 2016 was that which “was received” by the CCMCC in December 2015: see paragraph 5.1 of the Practice Direction. Mr Machell said that the claim form as issued in 2016 was not the one that had been received a year earlier because of the different address. The appellant said that the latter simply replaced the former and that, now that it was common ground that the claim form could be served on the Maidenhead address, it made sense for the address to be changed.

1. 1. My Lord, Lord Justice Stuart-Smith, tested Mr Machell’s submission in this way. Suppose that the wording of the two claim forms was precisely the same and all the appellant had done was to amend the Scottish address, keeping the original address on the claim form but showing the Maidenhead address by way of amendment. Mr Machell said that too would be a different claim form for the purposes of paragraph 5.1 of the Practice Direction.

1. 1. In my view, Mr Machell’s argument elevates form over substance. On the assumption that the substantive content of the claim form – that is to say, the details identifying the parties and of the claim actually being made – is precisely the same in both claim forms, then I take the view that the claim form that was received by the CCMCC in December 2015 was the claim form that was issued the following year. The change to the address for service did not matter because it had no bearing on the claim itself.

1. 1. More importantly, perhaps, I consider that that is also the effect of the Limitation Act. The claim was brought in December 2015. The court wrongly failed to act on the appellant’s request to issue the claim form and that was the only reason that the subsequent claim form was struck out as being statute-barred. The court could, technically, reinstate the 2015 proceedings but, one asks rhetorically, what would be the point? Proper proceedings are already underway and at a more convenient location. It would be absurd if the appellant was in a worse position because she had taken the sensible option of pursuing the respondent in England rather than seeking to reactivate the non-issued proceedings with the service address in Scotland.

1. 1. I consider that the preceding paragraph is a complete answer to the Judge’s criticism (set out at paragraph 17 above) that the appellant ought to have persevered with the original proceedings in late 2016, rather than to do as she did and replace the Glasgow address with one in Maidenhead. This is the point reflected at (3) of Andrews LJ’s order. That approach again runs the risk of putting form ahead of substance.

1. 1. There was a related debate about whether the appellant did all that she reasonably could do to bring the matter before the court in the appropriate way and at the appropriate time: see paragraphs 28-29 above. In my view she did. There was nothing further she could or should have done in order to get the claim form issued in December 2015. Her failure in respect of Form N510 related only to service and, once the claim form had been issued and the error in respect of Form N510 had been pointed out to her, I am in no doubt that it would have been promptly rectified.

1. 1. Contrary to Mr Machell’s submissions, I am not persuaded that the fee cases summarised in Hayes v Butters are directly analogous to this situation. That is because the fees that were not paid in each of those cases were fees payable for and on the issue of proceedings: in other words, there was a direct link between the payment or non-payment of the fee, and the issue of the claim form. That at least made it arguable that the non-payment of the fee justified the non-issue of the claim form. But here, for the reasons already explained under Issue 1, there was no link whatsoever between Form N510 and the issue of the claim form.

1. 1. However, to the extent that those authorities are analogous, it seems to me that they assist the appellant. As Peter Jackson LJ put it in Hayes v Butters, there is force in the concerns expressed in the authorities about the disallowing of a claim on limitation grounds merely because of an inadvertent miscalculation of a court fee. That might be said to have resonance in the present appeal: the appellant, a litigant in person, inadvertently failed to complete Form N510. That failure should not be held against her for the purposes of limitation.

1. 1. Towards the end of his oral submissions, Mr Machell began to make a point about the four months that elapsed between the appellant becoming aware of the Scottish proceedings not being issued (30 August 2016) and the issue of the claim form on 29 December 2016. The suggestion was that this 4 month delay should now be held against the appellant, so that this court should conclude that she had not done all she reasonably could to bring these proceedings as soon as possible.

1. 1. As I made plain to Mr Machell during argument, it was much too late for that point to be taken. It was not a point that had been raised before the District Judge or the Judge: on the contrary, the Judge appeared to be of the view that the 4 months did not matter, or that at the very least he was prepared to give the appellant the benefit of the doubt in respect of that period. In the passage from his judgment cited at paragraph 16 above, he said that “the appellant was in a position…at the latest by December 2016 to take any procedural action that was necessary to validate the claim form sent to the court on 11/11/15”. So she did: she provided the replacement claim form.

1. 1. In addition, no complaint or point about the 4 months was made in Mr Machell’s skeleton argument. The appellant therefore had no notice of this matter and was wholly unable to address it. It would not have been appropriate for such a point to have been raised for the first time towards the end of the hearing of any appeal, much less one involving a litigant in person.

1. 1. Finally, there was what Mr Machell expressly referred to as his “floodgates” argument. He said that if this court allowed the appellant’s argument then there might be no limit on the numbers of claimants who could seek to take advantage of it, or the number of claims that might be brought after the apparent expiry of the limitation period. He said that, without a temporal limit, once a claimant had his or her “foot in the door” by reference to some earlier documentation, they might be able to extend the relevant limitation period for years.

1. 1. As with most floodgates arguments, very little of this stands up to scrutiny. First, this is a decision on the unusual facts of this case. I very much doubt that they will be replicated in any sort of numbers at all. Secondly, the question of the amount of time that may have passed between the original attempt to issue the claim form and the subsequent events could be critical as to whether or not the claimant had done all that he or she reasonably could to bring the claim at the proper time. Here, the only period which was even potentially the responsibility of the appellant was the 4 months between the end of August and the end of December and I have addressed that in paragraphs 62-63 above. Thirdly, the delays which occurred from December 2016 onwards have all been referable to the respondent’s application to strike out the claim which, for the reasons that I have set out, was arguably flawed.

1. For these reasons, therefore, I consider that it is arguable that this action was “brought” on or around 11 December 2015 for the purposes of the Limitation Act. If my Lords agree, that is sufficient to mean that the order striking out this claim should be set aside and the matter remitted to the County Court.