I am grateful to barrister Henry Bankes-Jones for sending me a copy of the Court of Appeal decision today in Walton -v- Pickerings Solicitors and F Brophy [2023] EWCA Civ 602. Walton v Pickerings final The Court of Appeal allowed a decision relating to alleged late service of the claim form. This was because the court had no power at all to backdate the seal on a claim form. The court had backdated the date of sealing, making it impossible for the claimant to serve within the four month period. This should not have happened.
“The rules treat the act of sealing the claim form and the issue of the claim form as a single act which takes place at the same time. There is no express power to seal the claim form with a date other than that on which it is in fact sealed. CPR r 7.2(2) is not to be read as conferring a discretionary power on the Court to enter some different date on the claim form, but as requiring the Court to enter the date when the claim form is in fact issued.”
THE CASE
The claimant issued proceedings against the defendant. He issued personally, paid the fee of £10,000 and was given a receipt. He elected to serve the proceedings himself.
Because of Covid issues the court did not send out a copy of the sealed claim form for service.
On the 17th November 2020 the claimant served both of the defendants with unsealed claim forms. The defendants asked where the sealed claim form were. The claimant then made enquiries of the court, obtained sealed claim forms and served them in December 2020.
The claimant did not receive a copy of the sealed claim form until December 2020. When these were received the Court had backdated the claim form so as to be sealed on 20th July 2020. Because the claim form was sealed in July the claimant could not serve them within the four month period.
The defendants asked why sealed claim forms had not been served. The claimant made enquiries, it transpired that the court had lost the file.
THE CLAIMANT’S LOSS AT FIRST INSTANCE
The claimant lost at first instance for the reasons set out in an earlier post on this case.
It was held that the date on the claim form was the key date and the claimant failed to serve within four months of the date given on the sealed claim form.
THE CLAIMANT’S SUCCESSFUL APPEAL TO THE COURT OF APPEAL
The claimant succeeded on appeal. The Court of Appeal considered only one issue – whether the court had power to backdate a claim form.
THE COURT CANNOT BACKDATE A CLAIM FORM
20. . Mr Walton appeals to this Court, with permission granted by Arnold LJ. There are three grounds in his Grounds of Appeal. The first is that the Court has no power to backdate the date of issue of the claim form.
21. I will first set out the relevant rules of the CPR. CPR r 7.2 provides as follows:
“7.2 How to start proceedings
(1) Proceedings are started when the court issues a claim form at the request of the claimant.
(2) A claim form is issued on the date entered on the form by the court.”
22.. CPR r 2.6 provides as follows:
“2.6 Court documents to be sealed
(1) The court must seal(GL) the following documents on issue—
(a) the claim form; and
(b) any other document which a rule or practice direction requires it to seal.
(2) The court may place the seal(GL) on the document by hand, by printing or electronically.
(3) A document appearing to bear the court’s seal(GL) shall be admissible in evidence without further proof.”
23. The (GL) after “seal” indicates that it is included in the Glossary. The Glossary is a guide to the meaning of certain legal expressions used in the rules, but is not to be taken as giving them a different meaning from that which they have in the law generally (CPR r 2.2(1)). The entry for “seal” in the Glossary is as follows:
“A seal is a mark which the court puts on a document to indicate that the document has been issued by the court.”
24. The submission of Mr Richard Turney, who appeared for Mr Walton (and who did not appear below) was a very simple one. The rules treat the act of sealing the claim form and the issue of the claim form as a single act which takes place at the same time. There is no express power to seal the claim form with a date other than that on which it is in fact sealed. CPR r 7.2(2) is not to be read as conferring a discretionary power on the Court to enter some different date on the claim form, but as requiring the Court to enter the date when the claim form is in fact issued.
25. I accept these submissions which seem to me to be well founded. As appears from r 7.2, proceedings are not “started” until the Court issues the claim form. On issue the Court must seal the claim form (r 2.6(1)(a)), and the very purpose of the seal is to indicate that the claim form has been issued by the Court (see the Glossary). So until the claim form is marked with the seal the document has not been issued and the proceedings have not been started.
26. That can be tested in the present case by assuming the seal was in fact placed on the claim form on 1 December 2020 (as set out above, we do not know the actual date but it was undoubtedly some time between 5.30pm on 30 November 2020 and 7 December 2020). That means that if the question had been asked on 20 July 2020, or on any date between then and 30 November 2020, “Have the proceedings been started?” the only answer that could have been given would have been “No”, because the claim form had not yet been sealed and issued.
27. In those circumstances, in the absence of any express power in the rules, I have great difficulty in seeing how the Court by sealing the claim form on 1 December could change the answer to that question. Backdating the seal to 20 July 2020 clearly does not mean that the proceedings were in fact issued on that date as we know for certain that they were not. So to read r 7.2(2) as conferring a power on the Court to select some date other than the actual date of sealing is to read it as in effect conferring a deeming power on the Court under which a claim form in fact issued on 1 December 2020 can be deemed to have been issued on 20 July 2020.
28. But that is not what it says expressly, and I see no reason to read the rule as impliedly conferring such a power. The far simpler reading of the rule is that it directs the Court to enter the date of actual issue. We know from the Glossary that the purpose of sealing the claim form is to indicate that it has been issued, and it seems to me a simple and straightforward reading of the rules to regard the purpose of adding the date as being to indicate when it has been issued, and hence when the proceedings have started. If that is the purpose, which to my mind it plainly is, it seems more natural to regard the rules as requiring the Court to enter the true date when the claim form was sealed and issued rather than a false date.
29. . I have reached this view on a simple reading of these rules by themselves. But Mr Turney put forward two further reasons why the rules should be read in this way. The first is that the only reason for identifying the date of issue of the claim form under the CPR is to start time running for service.
30. This is different from the position under the RSC. Under the RSC, it was critical to identify the date of issue of the proceedings because this was the date when the action was “brought” for the purposes of the Limitation Acts and similar time-bars. Under the CPR however the position is different. This is the effect of Practice Direction 7A para 6.1, which provides as follows:
“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.”
In Barnes v St Helens Metropolitan Borough Council [2006] EWCA Civ 1372 this Court held that this paragraph correctly reflected the law: see per Tuckey LJ at [16]-[20].
31. The date of issue under the CPR is therefore not significant for limitation purposes. So what is its significance? The answer is that it starts time running for service of the claim form. By CPR r 7.5(1) the claimant has to take the requisite step to serve a defendant within the jurisdiction “before 12 midnight on the calendar date four months after the date of issue of the claim form” and by r 7.5(2) where the claim form is to be served out of the jurisdiction it must be served “within 6 months of the date of issue”.
32. I am hesitant about asserting that this is the only significance that the date of issue has under the rules, as that would require an exhaustive search of the rules which is not an exercise that has I think been carried out. But our attention was not drawn to any other rules where the date of issue of the claim form is significant, and I readily accept that the primary function of the date of issue is to mark the beginning of the period (4 or 6 months as the case may be) for service of the claim form.
33. That does seem to me another reason why the rules should not be interpreted as permitting the date of issue to be backdated: if the purpose of putting the date of issue on the claim form is to mark the beginning of the period for service, the effect of backdating the date of issue, as the facts of the present case demonstrate in dramatic fashion, is to give the claimant less time to serve than the rules on their face permit him to have. Even if the backdating is only a matter of a day or two it still reduces the time available to the claimant to serve; if, as here, the backdating is more than 4 months, the effect is that the claimant cannot serve within the period specified by r 7.5 at all.
34. I do not think an interpretation of the rules that permits this to happen should be adopted unless there is some compelling reason why the Court should have the power to cut down, or even eliminate altogether, the claimant’s period for service in this way. But there is to my mind no such compelling reason, indeed no reason at all, why the Court should be able to do this. The rules posit a simple sequence in which (1) the claimant takes his claim form to the Court Office, (2) the Court seals and issues the claim form, and (3) the claimant then has 4 (or 6) months in which to serve. If there is a gap between (1) and (2) – something that PD7A para 6.1 expressly contemplates might happen – then whether it is of a few days or of several months, there is to my mind no reason why that should be treated as abridging, or enabling the Court to abridge, let alone eliminate altogether, the period between (2) and (3).
35.. The other point that Mr Turney relied on is the decision of this Court in Harrison v Touche Ross (a firm) [1995] CLC 377. As its date shows, this was a decision under the RSC rather than the CPR. It therefore needs to be treated with some caution, as it was established very soon after the introduction of the CPR that, being “a new procedural code” (CPR r 1.1(1)), the rules in the CPR are to be interpreted and applied by reference to their own terms and not by reference to the authorities that had accumulated over many decades on the RSC: see for example Biguzzi v Rank Leisure plc [1999] 1 WLR 1926 per Lord Woolf MR.
36. Mr Turney relied on a statement in Harrison by Sir Thomas Bingham MR, giving the judgment of the Court (himself, Rose and Morritt LJJ), at 384 to the effect that it was not open to the Court to treat a writ as issued months before or after the date it was in fact issued. At first sight that seems quite apposite, and Mr Turney submitted that the same should apply to the issue of a claim form under the CPR.
37. Nevertheless the position is not quite as simple as that. In a subsequent decision of this Court, Riniker v University College London (31 March 1999), it was held that in certain limited circumstances the Court did have an inherent jurisdiction to direct that a writ should be treated as having been issued on the date when it was left in the custody of the Court. That was a jurisdiction that could be exercised for the purpose of preserving the limitation position for a plaintiff if the writ should have been issued when it was left with the Court: see per Evans LJ at [21]. That particular problem has, as already explained, ceased to be a problem under the CPR, and indeed Evans LJ noted that the CPR, which had already been drafted and were about to come into force, contained a provision similar to that now in PD 7A para 6.1 and said that “the same sensible result” could be achieved by the route he had described under the existing rules.
38. In those circumstances I think it is overstating matters to say that under the RSC the Court could never treat a writ as issued earlier than it in fact was. But we were not shown anything to suggest that this was ever done except for the purpose of preserving the limitation position for the plaintiff (or historically to justify the grant of an injunction when it was thought that an injunction could only be granted once proceedings had been brought). Since the position on both points is different under the CPR, I think it safer not to place any reliance on the pre-CPR cases.
39.. Nevertheless for the reasons I have given I accept Mr Turney’s overall submission that there is no power in the Court to seal a claim form with a date other than the date on which the claim form is in fact sealed.
40. Mr Henry Bankes-Jones, who appeared for Pickerings, did not advance any particular argument against Mr Turney’s submission. Instead, as explained below, the thrust of his submission was that Mr Walton was caught in a dilemma. Either there was no power to backdate the claim form, in which case it inevitably followed that the claim against Pickerings was statute-barred; or there was a power to do so, in which case Mr Walton needed an extension of time and there was no reason to overturn the exercise of the discretion by the Deputy Master and Deputy Judge.
41. Mr Brown, who appeared for Mr Brophy, pointed to the fact that the arguments put forward for Mr Walton had shifted. Mr Walton had initially relied in his application on CPR r 3.10, and then before the Deputy Master on CPR r 7.6; before the Deputy Judge he had also sought to rely on CPR r 6.15 and r 6.16. Mr Brown suggested that the point that the claim form could not be backdated was a further new point that had effectively been conceded below by Mr Howard Elgot, who appeared for Mr Walton before the Deputy Judge.
42. What the Deputy Judge says about this in his judgment is as follows (at [91]):
“I should mention briefly Mr Elgot’s submission that the Court made a further error in dating the sealed claim form 20 July 2020 instead of 7 December 2020, being the date when it was in fact sealed. He could however point to no requirement for the Court to insert on the claim form the date it is actually sealed. Indeed, he accepted that CPR Rule 7.2(2) might indicate to the contrary given that this provides that the claim form is issued on the date inserted by the Court which appears to give the Court discretion.”
That shows that the point was taken by Mr Elgot below, and although he seems to have been willing to accept there were arguments against it, I do not read this passage as indicating that he had conceded the point. As Mr Turney pointed out, he very shortly afterwards put it at the forefront of his argument when seeking permission to appeal.
43. Mr Brown also submitted that there was no evidence why the Court had dated the claim 20 July 2020. It was, he suggested, quite possible, if indeed not probable, that this is because this is what Mr Walton asked Mr Musa to do when he spoke to him. If so it would be inequitable for him now to take the point that the Court should not have done it.
44. I do not accept this submission. If the true position is, as I consider it is, that the Court has no power to backdate the issue of the claim form then it does not matter why it did it, or whether this was as a result of a request from Mr Walton or not. The question whether the Court does have such power is a pure question of the interpretation of the rules. In those circumstances I think it is open to Mr Walton to take the point on appeal regardless of the lack of evidence as to why it was done and even if (which Mr Turney told us on instructions Mr Walton denied doing) he had himself suggested it to Mr Musa.
45. Mr Brown referred to Barton v Wright Hassall LLP [2018] UKSC 12 at [16] where Lord Sumption said that rules of court had to identify some formal step that constituted service of the claim form on the defendant, adding:
“Service of the claim form within its period of validity may have significant implications for the operation of any relevant limitation period, as they do in this case. Time stops running for limitation purposes when the claim form is issued. The period of validity of the claim form is therefore equivalent to an extension of the limitation period before the proceedings can effectively begin. It is important that there should be a finite limit on that extension.”
But that was addressing a different point which is the power of the Court to extend time for service. It was not addressing the question that arises in the present case which is when the period for service starts to run.
46. Mr Brown further submitted that the Court did have the power to place the date of 20 July on the claim form. That was, he said, a rational thing to do as it was the date when the claim form was received by the Court. I have already given the reasons why I do not accept this submission. 20 July was indeed the date when the claim form was received by the Court; but it was not the date when the claim form was in fact sealed and issued, and that in my judgement is the date that the Court should have used for the seal. Whatever that date was it was between 30 November and 7 December 2020, and the service of the claim form on both defendants was therefore in time.
47. I add that although we were not referred to it, there is an interesting parallel to the present case in another decision of this Court, Stoute v LTA Operations Ltd [2014] EWCA Civ 657. There too there was a significant gap between the claim form being received by the Court (on 10 February 2012) and being issued (on 8 March 2012). The claim form was initially sealed with the date of 8 March, but, as Underhill LJ records at [17]:
“Mr Stoute attended the Central London County Court in person on 14 May 2012 and managed to persuade a clerk – wrongly – to amend the issue date from 8 March to 10 February.”
He goes on to explain that this was because of a concern about the limitation position but the concern was misplaced because the issue date was immaterial for limitation purposes, the relevant date being the date of receipt.
48. The actual decision in the case was concerned with a different point and it is not clear whether there was any argument on the backdating point, but it can be seen that Underhill LJ’s reaction to the successful attempt to persuade the Court to backdate the issue date was that this was wrong. For the reasons I have given above that accords with my own analysis.
49. In those circumstances I would allow the appeal and declare that the claim form was served in time on both defendants
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