Elmes v Hygrade Food Products Plc

This second tier appeal, for which permission was granted by Kennedy LJ, undoubtedly raises an important point of principle within the meaning of section 55(1) of the Access to Justice Act 1999. The question arising is this. When a claim form is served in time but incorrectly (here, on the defendants' insurers instead of on the defendants themselves), is there power in the court, on the claimant's application under CPR 3.10(b) and CPR 6.8, to remedy the error by an order deeming the service to have been good service by an alternative method not permitted by the rules? Such an order in the claimant's favour was made by District Judge Field on 14th April 2000. On appeal, however, it was overturned by Judge Barclay at the Swindon County Court on 27th June 2000. Before us today is the claimant's appeal seeking its reinstatement.

The point being one of general application the facts of the instant case are of no particular importance. It is more than sufficient to note that the claim arises out of an accident at work on 28th September 1996, when the claimant injured his back and right leg when lifting a die set in a machine; that in June 1999 the defendants' insurers confirmed to the claimant's solicitors that they would negotiate a settlement of the claim; that proceedings were issued on 28th September 1999, the last day of the primary limitation period; that on 2nd December 1999 the defendants' insurers made a Part 36 offer; and that on 27th January 2000, the last day of the four month period stipulated for service by CPR 7.5(2), the claimant's solicitors faxed the claim form to the defendants' insurers.

No point would be served by my rehearsing here the particular arguments advanced and dealt with below. The fact is that neither the district judge nor Judge Barclay had the benefit of the two authorities most directly in point, the unreported decisions of this court in Vinos v Marks & Spencer Plc, before Peter Gibson and May LJJ on 8th June 2000, and Kaur v CTP Limited before myself, Waller LJ and Gage J on 10th July 2000. Let me at once indicate what those two cases decided and then explain how Mr. Porter for the claimant seeks to distinguish them. The position in both Vinos and Kaur was that the claim form in each case had simply not been served in time. The claimants, recognizing that they could not succeed under rule 7.6, sought instead to invoke variously rules 3.9 and 3.10. Rule 7.6(3) provides:

"If the claimant applies for an order to extend the time for service of the claim form after the end of the period specified by rule 7.5 … the court may make such an order only if -

(a) the court has been unable to serve the claim form; or

(b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and

(c) in either case, the claimant has acted promptly in making the application."

The claimants were manifestly unable to satisfy those conditions. The Court of Appeal held that in those circumstances they could not in effect sidestep their difficulties and escape the apparent consequences of 7.6(3) by reliance instead on rules 3.9 and/or 3.10.

Rule 3.9 deals with relief from sanctions and provides that, "on an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances", and there are then set out a number of circumstances included for specific consideration. Rule 3.10 I should quote in full:

"Where there has been an error of procedure such as failure to comply with a rule or practice direction -

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error."

Giving the main judgment in Vinos May LJ in paragraph 20 said this:

"The meaning of 7.6(3) is plain. The court has power to extend the time for serving the claim form after the period for its service has run out 'only if' the stipulated conditions are fulfilled. That means that the court does not have power to do so otherwise. The discretionary power in the rules to extend time periods —rule 3.1(2)(a) —does not apply because of the introductory rules. The general words of Rule 3.10 cannot extend to enable the court to do what rule 7.6(3) specifically forbids, nor to extend time when the specific provision of the rules which enables extensions of time specifically does not extend to making this extension of time. What Mr Vinos in substance needs is an extension of time —calling it correcting an error does not change its substance. Interpretation to achieve the overriding objective does not enable the court to say that provisions which are quite plain mean what they do not mean, nor that the plain meaning should be ignored. It would be erroneous to say that, because Mr Vinos's case is a deserving case, the rules must be interpreted to accommodate his particular case. The first question for this court is, not whether Mr Vinos should have a discretionary extension of time, but whether there is a power under the Civil Procedure Rules to extend the period for service of a claim form if the application is made after the period has run out and the conditions of rule 7.6(3) do not apply. The merits of Mr Vinos's particular case are not relevant to that question. Rule 3.10 concerns correcting errors which the parties have made, but it does not by itself contribute to the interpretation of other explicit rules."

I need read no more from May LJ's judgment. Peter Gibson LJ in paragraph 25 posed the issue thus:

"Does the court have the power to extend time for service of a claim form if the claimant only applies after the...