Ms Zehour Chelfat v Hutchinson 3G UK Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Stuart-Smith,Lord Justice Peter Jackson |
| Judgment Date | 06 April 2022 |
| Neutral Citation | [2022] EWCA Civ 455 |
| Docket Number | Case No: CA-2021-000799 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 455
Lord Justice Peter Jackson
Lord Justice Coulson
and
Lord Justice Stuart-Smith
Case No: CA-2021-000799
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
AT CENTRAL LONDON
His Honour Judge Roberts
C40YP715
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared in person
Robert Machell (instructed by Womble Bond Dickinson LLP) for the Respondent
Hearing date: 29 March 2022
Approved Judgment
Introduction
The primary issue on this appeal is whether the appellant's failure to complete Form N510 (in relation to service out of the jurisdiction) entitled the court to refuse to issue the claim form that she had sent to them prior to the expiry of the limitation period. When she eventually discovered the court's refusal, the appellant provided what she called a replacement claim form, which the court issued; but the claim based on the replacement form was struck out because by then the claim had become statute-barred. Because of the wider importance of the issue, Andrews LJ gave permission for this second appeal on 10 January 2022, following an oral hearing.
The facts of the case are unusual. They make it possible to paint both the primary issue and its possible outcomes in relatively extreme colours. So, on the one hand, it might be said that this court should not go out of its way to help an appellant who, in Andrews LJ's words, is “a litigant in person with an unenviable track record of bringing hopeless claims”, in circumstances where she had not completed Form N510 as required by the rules; where the replacement claim against the respondent was not brought until a year after the first; and where the claim is modest, limited to no more than £5,000.
On the other hand, there is nothing in the CPR or in any authority which suggests that a failure to complete Form N510 permits the court to refuse to issue the claim form when requested to do so, and that to penalise the appellant in such circumstances would ignore the fact that: a) she was only pursuing the respondent in Scotland (which necessitated the use of Form N510) because they had told her that that was the relevant address for service; b) the letter from the court refusing her request was sent after the limitation period had expired, gave three reasons for refusing to issue the claim (two of which are accepted or have been found to be wrong), and was never received by the respondent; and c) where the working assumption in the lower courts was that the claim form that was eventually issued was in precisely the same form as the original claim form, simply with a different address for service.
The Background Facts
On 14 December 2009, the appellant went to a shop near Marble Arch belonging to the respondent. There she purchased a 3G dongle. She asserts that the respondent's employee installed the dongle into her laptop.
It is the appellant's case that, because of the way in which the dongle was installed, her laptop was damaged irreparably and, in consequence, the appellant lost a number of valuable items of information, and data including photographs. She was refunded the price of the dongle. On 16 December 2009 she purchased a replacement dongle from another of the respondent's shops in Oxford Street. This dongle did not work and caused her laptop to slow down. It appears that on 30 December 2009 the replacement dongle was returned to the store. A refund was refused. There was some form of altercation and the respondent's employee threatened to call the police.
Sometime in the autumn of 2015, the appellant was in communication with the respondent, asking about the correct address for the service of legal proceedings. The appellant says that she was twice given over the telephone an address for service in Scotland. On 9 December 2015, the appellant sent to the County Court Money Claim Centre in Salford (“CCMCC”) a Claim Form, a Particulars of Claim, and a witness statement. The Claim Form gave as the Defendant's address for service the address in Scotland that she had been given by the respondent. She also served a separate application and further witness statement asking that all documents and correspondence between the parties and with the court should be by way of email because of difficulties with postal deliveries to her address.
These documents were delivered to the CCMCC on 11 December 2015. There is a recorded delivery receipt to that effect. On the face of it, therefore, the claim form and the other documents were delivered within the 6 year limitation period, which was due to expire on 14 December 2015 (first dongle) and 16 December 2015 (second dongle). However, the claim form was not issued by the CCMCC. The CCMCC said that the documents were returned to the appellant under a letter dated 17 December 2015, although that was apparently contradicted by their later suggestion that the file had been lost.
The letter identified three reasons why the CCMCC had refused to do what the appellant had requested. The first concerned an alleged failure properly to complete an application for fee remission. The second alleged that the appellant was the subject of a Civil Restraint Order and so required permission before any claim was issued. The third noted that the appellant had not provided Form N510, concerned with Service out of the Jurisdiction. It is important to set out what the letter said about Form N510:
“In relation to your New Issue:
• You have not provided a Service out of the Jurisdiction (N510) form. In accordance with Civil Procedure Rule 6.34(2) (a)(b): As the Defendant is located outside of England & Wales a Service out of the Jurisdiction (N510) form is required before this claim can be issued.”
When the letter was subsequently considered by District Judge Avent (“the District Judge”) he considered that these three reasons explained why the claim from had not been issued. I agree with that reading of the letter. Although Mr Machell pointed out that the first two reasons were set out under the heading of ‘Fee Remission’, there can be no doubt that the letter was intended to convey to the appellant that all three of the matters identified in the letter justified the CCMCC's decision not to issue the claim form.
As to the first reason, the District Judge concluded that the court had been wrong to say that there had been an error in the fee remission documentation. There is no appeal against that finding. As to the second reason, it is right that the appellant had been the subject of a prior Civil Restraint Order, and has been the subject of at least one Extended Civil Restraint Order since 2015–2016. However, the District Judge found that, at the time of these events, there was no Civil Restraint Order and that therefore the CCMCC was again wrong to refuse to issue the claim form on the second ground. Again, there is no appeal against that finding. In this way, the failure to complete Form N510 is now the only surviving reason put forward by the CCMCC for not issuing the claim form in accordance with the appellant's instructions.
Unhappily, the mishaps did not stop there. As noted above, it does not appear that the letter of 17 December 2015 was ever received by the appellant. The matter was further confused by the subsequent assertion by someone at CCMCC to the appellant that, rather than returning the papers with the latter of 17 December 2015, the file had instead been lost. The emails that we have seen strongly suggest that the appellant only became aware of the letter of 17 December 2015, and the CCMCC's reasons for refusing to issue the claim form, on 30 August 2016.
The current proceedings were issued on 29 December 2016. By now the appellant had been given an address for the respondent in Maidenhead, which she put in the replacement Claim Form instead of the Scottish address that she had previously been given. The proceedings put the claim by reference to the Consumer Protection Act 1987 (which has a limitation period of 3 years), as well as contract and tort (which have limitation periods of 6 years, albeit with possibly different accrual dates). It follows that, whichever of these causes of action is being assessed, they were all prima facie statute-barred when the second claim form was issued on 29 December 2016. However, the appellant argued that, since the claim form was in precisely the same terms as the claim provided to CCMCC on 11 December 2015 (with the exception of the change of the address for service, from Glasgow to Maidenhead), 11 December 2015 was the effective date for limitation purposes.
On 13 April 2017, the respondent applied to strike out the issued claim on the grounds that it was statute-barred. The District Judge struck out the claim on the papers on 21 September 2017. The appellant applied to set aside that order in time. The hearing of the application to set aside the striking out was not heard by the District Judge until 18 December 2018, a pre-pandemic delay which seems, on the face of it, to have been inordinately long.
The Judgments Below
As noted above, the District Judge rejected the first two reasons proffered by the CCMCC in the letter of 17 December 2015 for not issuing the claim form; see paragraphs 14–18 of his judgment. He then turned to the failure to provide Form N510. He said:
“19. However, [the appellant] accepts that she did not provide a Service out of the Jurisdiction form at N510. What she says about this in her witness statement I will come to shortly, but the fact of the matter is this: when she wrote to the Court originally on 9th December 2015, her claim was addressed to Hutchison 3G UK Ltd., PO Box 333, Glasgow G2 9AG. When these proceedings were finally issued on 29th December 2016, the...
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...claim form as issued was, in substance, the same as that provided to the Court on 23 March: see e.g. Chelfat v Hutchinson 3G UK Ltd [2022] EWCA Civ 455 at [55]. The only difference was the fee and the difference between the fee tendered (£308) and the fee that should have been paid (£332) ......
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