Aktas v Adepta
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lord Justice Longmore,Lord Justice Aikens |
| Judgment Date | 22 October 2010 |
| Neutral Citation | [2010] EWCA Civ 1170 |
| Docket Number | Case No: B3/2009/1650 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 October 2010 |
[2010] EWCA Civ 1170
District Judge Dignan
Before:lord Justice Rix
Lord Justice Longmore
and
Lord Justice Aikens
His Honour Judge Mitchell
Case No: B3/2009/1650
8SK04492
8BI07791
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOCKTON COUNTY COURT
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
Mr Augustus Ullstein QC and Mr Peter Foster (instructed by Delta Legal) for the Appellant Aktas
Mr Christopher Purchas QC and Mr Toby Gee (instructed by Just Law) for the Respondent Adepta
Mr Richard Methuen QC and Mr Andrew Roy (instructed by Savas & Savage Solicitors) for the Appellant Dixie
Mr James Rowley QC and Mr Steven Snowden (instructed by Kennedys) for the Respondent British Polythene Industries Ltd
Hearing dates: 15 th and 16 th March 2010
Lord Justice Rix:
These conjoined appeals raise the issue whether a claim whose claim form has been issued towards the very end of a limitation period and has then been struck out owing to a failure to serve it in time ( CPR Part 7.5(1) allows four months from issue of the claim form for its service) can be resurrected in a second action which invokes the discretionary provisions of section 33 of the Limitation Act 1980 (the “1980 Act”) relating to claims for personal injury. The judge in each case has said No, and, without reaching the Limitation Act issue, has struck out the second action as an abuse of process. In one case he has also gone on in the alternative to exercise his discretion against disapplying the basic limitation period, but it is common ground that if the claim survives into a second action the exercise of that discretion was flawed and that it is for this court to exercise it afresh.
To understand the arguments it is necessary to visit a number of separate lines of authority dealing variously with failure to serve in time, with abuse of process, and with section 33. At the heart of the issue, however, is a relatively recent decision of the House of Lords, Horton v. Sadler [2006] UKHL 23, [2007] 1 AC 307 ( Horton). The importance of Horton is that it departed from an earlier decision of the House in Walkley v. Precision Forgings Ltd [1979] 1 WLR 606 which had cast its influence on previous jurisprudence. Walkley had decided that the discretion in section 2D of the Limitation Act 1939 (the “1939 Act”), the predecessor to section 33, could not be exercised in relation to a second action which had been commenced out of time where the first action had been commenced in time but had been lost due to a failure to serve in time. Horton departed from that decision, both as a matter of the true construction of section 33 and as a matter of the interests of justice – which it was necessary to take into account since the House was reviewing its own prior decision. Horton held that section 33 gave a wide and unfettered discretion in relation to the second action to disapply the time limit of three years contained in section 11 of the 1980 Act having regard to the degree to which the parties would be prejudiced and taking into account all the circumstances of the case.
Although the submissions of the parties ranged widely over the intricate jurisprudence cited to us, the central submission of the respondent defendants is that a failure to serve in time in the first action is so serious a misuse of procedure and so strictly regarded as an act of disrespect to the court as to constitute or be tantamount to an abuse of process, such as requires the striking out of the second action as a further abuse of process, irrespective of any question of the section 33 discretion, which thus is never reached and becomes irrelevant. The central submission of the appellant claimants is that this has never been held to be the case in any of the multitudinous cases which have traversed this problem, and that the so far successful attack on their second actions is an attempt to put the clock back to before Horton.
It is important to emphasise that, although the claimants, through their negligent solicitors, are undoubtedly at fault in failing to serve their respective claim forms in time, and have therefore fallen outside the basic limitation period of three years under section 11 because their claim forms were themselves issued only shortly before the end of that period, nevertheless they are not guilty of any other breach of rule or order of the court. Moreover, the defendants were well aware of the respective claims and had admitted liability before the debacle.
What therefore is primarily at issue in this appeal is the tension between on the one hand the strictness with which it is clear that mere failure to serve in time is regarded by rules of procedure and the courts, and on the other hand the statutory concession which Parliament has seen fit to allow to personal injury claimants under the provisions of section 33. As will appear, that concession is largely determined by the question of prejudice to the parties, although the discretion is wide and traverses all the circumstances of the case. The defendants submit that, in the face of the claimants’ abuse of process, the courts are entitled to protect their own procedure, irrespective of such questions. The claimants submit that, at any rate in circumstances such as appear in these cases, this is to ignore the will of Parliament. The defendants submit that if the judges below were wrong to have struck out the second actions, then there is no sanction for the serious failure to serve in time. The claimants submit that there is sanction enough in the failure of the first action (with attendant cost consequences and the need for a claimant to pass successfully over the hurdle of section 33). The defendants submit that, irrespective of any lack of relevant prejudice to them in allowing the second action to proceed, they should be freed of responsibility so that the court may discipline the claimants and their solicitors. The claimants’ loss may be mitigated by the new cause of action which they obtain against their solicitors.
The two cases with which we are here concerned arose out of personal injury claims. In one, Aktas v. Adepta, the claimant, Mrs Aktas, suffered her injury on 4 September 2004. Her letter of claim was sent almost two years later on 11 July 200Her first claim form was issued on 3 September 2007, the last day of the three year limitation period. However, on the very next day the defendant admitted liability. Time for service was extended, but even so service was only effected on 3 April 2008, the day after time expired. The claim form was set aside. On 22 August 2008 Mrs Aktas issued her second claim form. On 21 April 2009 District Judge Dignan struck out the second claim as an abuse of process. On 24 June 2009 HHJ Tetlow referred Mrs Aktas’ appeal to this court. On this appeal Mr Augustus Ullstein QC has appeared on behalf of Mrs Aktas and Mr Christopher Purchas QC has appeared on behalf the respondent Adepta.
In the other appeal, Dixie v. British Polythene Industries plc, the claimant, Mr Dixie suffered his injury on 27 February 2005. His letter of claim was sent promptly on 19 August 2005. On 5 October 2005, the defendant admitted liability. There were interim payments and an offer to settle. The first claim form was issued on 22 February 2008, shortly before the expiry of time. Time for service expired on 22 June 2008, but by oversight service was not effected until 7 July 2008. The claim was struck out by District Judge Manley on 13 August 2008. On 29 August 2008 Mr Dixie issued his second claim form and it was served on 5 September 2008. On 8 July 2009 HHJ Mitchell struck out the second claim (but granted permission to appeal). He did so on the basis that the second claim form was an abuse of process, alternatively he would have declined to exercise his section 33 discretion in Mr Dixie's favour. On this appeal Mr Richard Methuen QC has appeared on behalf of Mr Dixie and Mr James Rowley QC has appeared on behalf of the respondent BPI.
Thus in both cases liability was admitted either before or soon after the issue of proceedings, but the first claim was lost because of failure by the solicitors concerned to observe the last date for service. In both cases the parties were in touch with one another both before issue and in between issue and service of proceedings, in mutual awareness of the issue of the claim form, dealing with medical evidence relating to quantum. In Mrs Aktas’ case, her first claim form was set aside. In Mr Dixie's case, his first claim form was struck out. It is agreed that nothing turns on this verbal distinction. A fuller chronology of each case appears below.
Aktas v. Adepta
| 4.9.04 | Mrs Aktas suffers an injury at work. |
| 11.7.06 | Letter of claim. |
| 25.5.07 | Application for pre-action disclosure |
| 29.8.07 | Consent order for pre-action disclosure. |
| 3.9.07 | First claim form (7SK04282) issued on last day of limitation period, and has to be served by 3.1.08, unless an extension is granted. |
| 4.9.07 | Defendant admits liability. This was in knowledge of the issue of the claim form. |
| 12.12.07 | Deputy District Judge Heppel extends time for service to 2.4.08 on application made ex parte on the ground that medical reports are awaited. |
| 20.2.08 | Mrs Aktas’ solicitors receive orthopaedic report. |
| 28.2.08 | Mrs Aktas’ solicitors receive psychiatric report. |
| 2... |
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