Barnes v St Helens Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tuckey,Lady Justice Arden,Lord Justice Lloyd |
| Judgment Date | 25 October 2006 |
| Neutral Citation | [2006] EWCA Civ 1372 |
| Docket Number | Case No: B1/2006/0647 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 October 2006 |
[2006] EWCA Civ 1372
Lord Justice Tuckey
Lady Justice Arden and
Lord Justice Lloyd
Case No: B1/2006/0647
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
HIS HONOUR JUDGE MacMILLAN
5S001513
Royal Courts of Justice
Strand, London, WC2A 2LL
John NORMAN (instructed by Messrs Weightmans) for the Appellant
Andrew WILLINS (instructed by Maxwell Hodge) for the Respondent
Hearing date: 10 th October 2006
Section 11 of the Limitation Act 1980 provides that “(3) An action [for personal injuries] shall not be brought after the expiration of … (4) three years from the date on which the cause of action accrued”. Paragraph 5 of the Practice Direction supplementing CPR Part 7 says that:
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 statutes on that earlier date.
5.2 The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.
5.3 An enquiry as to the date on which the claim form was received by the court should be directed to a court officer.
5.4 Parties proposing to start a claim which is approaching the expiry of the limitation period should recognise the potential importance of establishing the date the claim form was received by the court and should themselves make arrangements to record the date.
The question which arises on this appeal is whether paragraph 5.1 is correct. It arises on appeal from a judgment of His Honour Judge MacMillan given in the Liverpool County Court who decided that it was. The point is of importance because it relates not just to personal injury claims but to all claims the subject of Part 1 of the 1980 Act which in each case cannot be “brought after the expiration” of the applicable time limit.
The facts relevant to what we have to decide can be shortly stated. The claimant alleges that he has suffered personal injury, loss and damage as a result of the defendant local education authority's negligence and breach of statutory duty in the way in which he was educated. The three year primary limitation period starting on his 18 th birthday expired on 5 November 2004.
On Thursday 4 November the Legal Services Commission extended public funding to enable the claimant's solicitor to start proceedings on his behalf. The solicitor attended the offices of the Liverpool County Court that day with a letter which said:
Re: William Barnes v St Helens Metropolitan Borough Council
We enclose for issue:
1. Claim form in triplicate;
2. Cheque for the court fee in the sum of £400.
Please issue the claim and return to us two sealed copies – one for service. We will affect service of the claim form.
The solicitor handed this letter and its contents to a clerk. The clerk date stamped the solicitor's copy of the letter with the court's official stamp to record the fact that the letter and its enclosures had been received on 4 November. On 5 November the court offices were open but a number of its staff were taking industrial action. When the solicitor phoned the court that day he was told that there was nobody working in the new issue section but they would be back to work on Monday. So it was that the claim form was not issued and dated until Monday 8 November.
CPR 7.2 is headed “How to start proceedings” and provides:
7.2 (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.
So the proceedings were not “started” for the purpose of the rules until 8 November, three days after the primary limitation period had expired. However if the Practice Direction is correct they would have been brought in time because the claim form was received by the court on 4 November.
The judge thought there was no difference between the verbs “to bring” and “to start”. However he accepted a submission that rule 7.2 was ambiguous and went on to resolve the ambiguity by reference to the Practice Direction. His conclusion that the claim had been brought within the three year primary limitation period meant that he did not have to consider whether that time limit should be disapplied under the provisions of Section 33 of the 1980 Act.
The question for us is when is a claim “brought” for the purpose of the 1980 Act under the procedural regime introduced by the CPR? Is it on the date which appears on the claim form when the court issues it and the proceedings are started as provided by rule 7.2, or is it when the court receives the request to issue it? I think the meaning of rule 7.2 is clear: proceedings start on the date entered on the claim form by the court which is their date of issue. The question is whether this is also the time when the claim is brought as Mr Norman for the defendant contends.
Surprisingly there is no authority directly on point. But we were referred to two pre-CPR authorities, and two post CPR authorities dealing with different statutory time limits and I shall consider these cases first.
In Pritam Kaur v S. Russell & Sons Limited [1973] QB 336 this court decided that if a statutory limitation period expired on a day when the court offices were closed it should be extended to the next day on which they were open. At p. 349 Lord Denning said that the arguments were so evenly balanced that the court could come down either way. He summarised them as follows:
The defendants can say: “The plaintiff has three years in which to bring his action. If the last day is a Saturday or Sunday, or other dies non, he ought not to leave it until the last day. He ought to make sure and issue it the day before when the offices are open”.
The plaintiff can say: “The statute gives me three years in which I can bring my action. If I go into the offices on the last day, and find them closed, I ought not to be defeated on that account. I should be allowed to go next day when the offices are open. Otherwise I should be deprived of the three years which the statute allows me”.
The court accepted the argument for the plaintiff. Mr Norman relies on the fact that Lord Denning said that there was no difference between the words “shall not be brought after” in the applicable Limitation Act and the words “shall be commenced within” in the Fatal Accident Acts, but this point was not argued and I do not think it gets him very far.
The other pre-CPR case is ( Riniker v University College London unreported CA 31 March 1999). In that case the writ office of the High Court unjustifiably rejected a writ which the plaintiff asked to be issued and did not issue it until the limitation period had expired. The court held that it had inherent jurisdiction to direct that the writ should be treated as if it had been issued on the date when it should have been issued. At the end of his judgment Evans L.J. said that what is now paragraph 5.1 of the Practice Direction would produce the same sensible result under the CPR.
Post CPR in Van Aken v Camden London Borough Council [2002] EWCA Civ 1724 this court...
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...issued by the court, the claim is “brought” for the purposes of the Limitation Act 1980 on that earlier date: see Barnes v St.Helens Metropolitan Borough Council [2006] EWCA Civ 1372; [2007] 1 WLR 879. In Barnes Tuckey LJ said: “18. The date of issue of the claim form fixes the time withi......
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...that the proceedings in question were issued on 17 th May and that they were correctly given that date by the court. See St Helens Metropolitan Borough Council v Barnes [2006] EWCA Civ 1372 per Tuckey LJ at para. 7. It follows that these proceedings were commenced on that date. 10 Miss Wils......
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...of Lord Denning MR in Pritam Kaur v S Russell and Sons Ltd [1973] QB 336, which was cited by the Court of Appeal in Barnes v St Helens Metropolitan Borough Council [2007] 1 WLR 879. The passage in Lord Denning's judgment was as follows: "The defendants can say: "The plaintiff has three year......