CLAIMANTS COME TO GRIEF OVER SERVICE OF UNSEALED CLAIM FORM: COURT OF APPEAL HOLD THAT CPR 3.10 APPLIES TO DEFENDANT’S MISCARACTERISED APPLICATION

It is rarely possible to get to the end of a month without some kind of discussion on this blog about service of the claim form. This month is no exception. In Pitalia & Anor v NHS England [2023] EWCA Civ 657 the Court of Appeal upheld a decision that meant that the claimants’ claim failed as a result of a failure to serve a sealed copy of the claim form within the four month period.   There are lessons for both sides in this case.  For claimants it shows the importance of serving a sealed copy of the claim form within the four month period. For defendants it shows that it would be prudent to know the rules about disputing jurisdiction and make an application in relation to the claim form expressly under CPR Part 11.  The defendant was fortunate in this case, it is not difficult to see other defendants making late and inaccurate applications and not finding the court so willing to help.   The key point (as ever) is the significance of accurate and timely service of the sealed claim form.

“I am not impressed by the argument on behalf of the Appellants that if their failure to comply with the rules is to be treated so strictly despite the serious consequences, the same procedural rigour should be applied to the Respondent. That argument is contrary to the decision of the Supreme Court in Barton. Errors in issuing and serving originating process are in a class of their own.”

THE CASE

The claimants served a claimed form that was unsealed. A sealed copy was served outside the four month period of validity.   The defendant took the point that service was not valid and informed the claimant it would apply to strike out the claim.

The parties then made a number of applications.

The defendant’s application was dated  24 January 2020, “seeking an order that the claim be struck out due to non-compliance with CPR 7.5 (“the Respondent’s First Application”)”.

The defendant did not, however, refer to CPR Part 11 in its application, nor was the application said to be under that rule.

The District Judge held that valid service of the claim form had not taken place.  She also held that the defendant’s application, although not under CPR 11, was an appropriate application to dispute service.  The claimant’s claim was struck out

The claimants’ appeal to the Circuit Judge was unsuccessful. That appeal is discussed in detail in a previous post.

THE CLAIMANTS UNSUCCESSFUL APPEAL TO THE COURT OF APPEAL

The claimants were equally unsuccessful in the Court of Appeal.   The claimants argued that the failure to make an application under CPR Part 11 prevented the defendant from being able to contest the application.

THE JUDGMENT OF LORD JUSTICE BEAN

Having reviewed the arguments, Lord Justice Bean stated:

1. 1. The following principles emerge from the authorities in this area:

(i) Barton v Wright Hassall LLP makes clear the particular importance attached by the Supreme Court to the timely and lawful service of originating process. Failure to comply with the Rules about such service is to be treated with greater strictness than other procedural errors. In the present case, if the Respondent’s solicitors had made their application of 24 January 2020 expressly seeking a declaration under CPR 11(1) that the court has no jurisdiction to try the claim, there would have been very little that the Appellants could have said in response.

(ii) On the other hand, the principle established in Vinos and followed in cases such as Ideal Shopping is that CPR 3.10 cannot be used to override an express prohibition in another Rule. An example of such an express prohibition is in CPR 7.6(3). If a claimant applies retrospectively for an order to extend the time for service of a claim form the court may make such an order only if the remaining conditions laid down by the rule have been fulfilled. If they have not been fulfilled then Rule 3.10 is simply not available. But the Vinos principle must not be expanded into saying that CPR 3.10 cannot be used to rectify any breach of the CPR. Otherwise the Rule would be deprived of its utility. When CPR 3.10 is invoked it presupposes that some error of procedure has been made. Without it civil litigation would be even more beset by technicalities than it is already.

(iii) There is a valid distinction between making an application which contains an error, and failing to make a necessary application at all. Steele v Mooney [2005] 1 WLR 2819 is a useful illustration. In that case the claimants sought the defendants’ consent to a draft order extending time for service of the Particulars of Claim. That consent was forthcoming, but the extension of time was useless since the claimants had omitted to refer to the claim form. This court, distinguishing Vinos, held that the application for an extension of time was clearly intended to be for service of the claim form as well as the particulars. The subsequent application for relief was not in substance an application to extend time for service of the claim form, but an application to correct the application for an extension of time which had been made within the time specified for service and which by mistake did not refer to the claim form.

1. 1. Hoddinott lays down that if a Defendant acknowledges service without making an application under CPR 11(1) for an order declaring that the court has no jurisdiction (or should not exercise its jurisdiction) to try the case, this is taken to be an acceptance of jurisdiction. Whatever one might think of Hoddinott, the decision is binding on us, and like the judge I do not consider that it has been impliedly overruled by Barton. The judge was also right to reject the argument, based on the use of the word “expired” in Barton, that there is an analogy between the expiry of a claim form and the death of a living creature. Plainly in some circumstances an expired claim form can be revived: see CPR 7.6(3).

1. 1. I agree with the judge that the failure of the Defendant’s solicitors, when completing the acknowledgment of service form, to tick the box indicating an intention to contest jurisdiction is not fatal to their application for relief. Even if the box had been ticked an application would still have been required to be made within 14 days. CPR 11(1) does not say that a box on a form must be ticked: it says that an application must be made. As the judge put it, a tick in the box is neither necessary nor sufficient as a basis for challenging jurisdiction.

1. 1. The critical question, therefore, is whether the Defendant’s application of 24 January 2020 can, by the use of CPR 3.10, be treated as having been made under CPR 11(1). I do not accept Mr Trotman’s argument that such rectification would offend against the Vinos principle. CPR 11(1) does not contain clear mandatory wording equivalent to that laid down by CPR 7.6 (3) that a retrospective extension of time may be granted “only if” certain conditions are fulfilled.

1. 1. The failure to make express reference to CPR 11(1) in the letter of 21 January 2020 or the application of 24 January 2020 was in my view an error capable of rectification under CPR 3.10. The three documents – the acknowledgment of service, the covering letter and the application to strike out supported by witness statements – together made the Defendant’s intentions clear. This was in substance an application to stop the case on the grounds that the Claimants had failed to serve the claim form in time. The case is much closer to Steele v Mooney than to Vinos or Hoddinott.

1. 1. I am not impressed by the argument on behalf of the Appellants that if their failure to comply with the rules is to be treated so strictly despite the serious consequences, the same procedural rigour should be applied to the Respondent. That argument is contrary to the decision of the Supreme Court in Barton. Errors in issuing and serving originating process are in a class of their own.

1. 1. I would also reject the Appellants’ alternative argument based on Denton v TH White Ltd. I do not regard the failure of the documents served on 21 and 24 January 2020 to make express reference to CPR 11(1) as a serious and significant transgression. It was, rather, just the sort of technical error for which CPR 3.10 was designed.

1. I wish to pay tribute to Judge Pearce’s erudite and carefully reasoned judgment, which in my view was correct in all material respects. I would dismiss the appeal.