Steele v Mooney and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DYSON |
| Judgment Date | 08 February 2005 |
| Neutral Citation | [2005] EWCA Civ 96 |
| Docket Number | Case No: B1/2004/0877 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 February 2005 |
[2005] EWCA Civ 96
Lord Justice May
Lord Justice Tuckey and
Lord Justice Dyson
Case No: B1/2004/0877
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
Deputy District Judge Smith
BH301909
Royal Courts of Justice
Strand, London, WC2A 2LL
John E Gimlette (instructed by Dutton Gregory) for the Appellant
Neil G Davy (instructed by Berrymans Lace Mawer) for the Respondent
this is the judgment of the court.
This appeal concerns the interpretation of CPR 3.10 which provides:
"Where there has been an error of procedure such as a 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."
The facts are as follows. The claimant was admitted to the Nuffield Hospital, Ipswich on 9 May 2000 for a vaginal hysterectomy. This was performed by Mr Mooney. Dr Bailey was the anaesthetist in attendance, and the Nuffield Hospital employed the nurses who provided the nursing care. During the surgery, the claimant underwent a sacrospinous fixation to which she alleges she did not consent. She haemorrhaged after the operation. There was a significant delay in treating the haemorrhage which, she alleges, resulted in her recovery being protracted and her suffering further injury. She underwent a further operation and was transferred to the intensive care unit of the local NHS hospital. It is her case that, although she has made a full physical recovery, she is still suffering psychologically from the treatment she received.
She tried to pursue a complaint for about two years and did not consult solicitors until 22 April 2003. The claim form was issued on 6 May 2003, ie only 3 days before the expiry of the limitation period. Mr Mooney, Dr Bailey and The Nuffield Hospital, Ipswich were named respectively as first, second and third defendants. The claim form was not served within the 4 months' period specified by CPR 7.5(2). On 21 July, Rebecca Watkins, the solicitor who was handling the case on behalf of the claimant, sent a draft consent order to the then proposed 3 defendants in the following terms:
"1. There be an extension of time of two months for the service of the Particulars of Claim and supporting documents."
2. The claimant do have leave to serve the Particulars of Claim and supporting documentation including the Claim Form issued on the 6 th May 2003 upon the 1 st, 2 nd & 3 rd Defendants by 5 th November 2003" (emphasis added)."
The 3 rd defendant's representatives returned the draft consent order signed and approved. The 2 nd defendant's insurers wrote on 23 July saying that the parties could not extend the time for service of the claim form by consent, and suggesting that the claimant make a without notice application to the court. There seems to have been no response from the first defendant.
It was in these circumstances that on 13 August 2003, the claimant issued an application notice for an extension of time of 4 months "for the service of the Particulars of Claim and supporting documentation". In her witness statement, Ms Watkins says that she intended to follow the wording of the draft consent order, and include the words "Claim Form" in the application: their omission was a mistake.
The evidence in support of the application included the following statement by the claimant's solicitor:
"We wrote to the various treatment providers and record holders on the 28.04.03. We had great difficulty in finding an expert who would prepare a report for liability before the beginning of September. We did not receive the First and Second Defendants' records until the beginning of July. We were not obviously able to instruct our expert until these records, especially the First Defendant's records, were received."
An expert (Consultant Gynaecologist) is currently preparing a liability report, although he does not feel able to comment totally until the missing records are obtained.
As stated previously, a causation report and then condition and prognosis report will need to be obtained on top of the liability report if it is favourable. We do not consider that the above can be provided to us in a shorter period of time than four months."
On 15 August, Deputy District Judge Stone granted an extension of time of 4 months for the service of "the particulars of claim and supporting documentation".
On 8 December, Ms Watkins wrote to each of the defendants saying that she required a further short extension of time to serve proceedings on them.
On 10 December, the claimant made a further application for an extension of time of 2 months for the service of "the Particulars of claim and supporting documentation." The solicitors' evidence in support of this application stated that the claimant needed further time in order to instruct and be advised by counsel and the liability expert, in particular, as to whether the claim should be pursued against the second and third defendants. Draft reports had been obtained, but they had not been finalised and further investigations were necessary.
On 15 December, District Judge Mildred extended the time for service of the particulars of claim and supporting documentation until 29 January 2004.
Following a conference with counsel, the claimant decided to proceed only against the first defendant. On 17 February, Ms Watkins realised that she had made a drafting error in the applications for an extension of time for service in that she had omitted to include a reference to the claim form. Thus it was that on 18 February 2004, the claimant applied to the court for an order that the orders of 15 August and 15 December 2003 be rectified to state respectively that "there be an extension of time of 4 months to serve the Claim Form, Particulars of Claim and supporting documentation" and "time for service of the Claim Form and supporting documentation be extended to 29.1.04". The reason given was that:
"When drafting the application notices of 13.8.03 and 10.12.03, the Claimant's Solicitors meant to ask for an extension of time of the Claim Form (as can be shown in the Consent Order sent to the Defendants on 21.7.03). The Defendants have not been prejudiced by this error. This application is made under CPR 3.10".
On 15 March 2004, Deputy District Judge Smith acceded to the application and amended the two orders accordingly. She distinguished Vinos v Marks and Spencer plc [2000] 3 All ER 784 to which we shall refer later in this judgment. She said that it was the understanding of both parties that what the claimant was seeking was an extension of time for service of the claim form as well as the particulars of claim and supporting documents. If the applications had included a reference to the claim form, they would not have been opposed by the defendants, and it was more likely than not that extensions of time for service of the claim form would have been granted.
The defendants appealed. On 7 April 2004, His Honour Judge Rudd allowed the appeal. He held that what occurred in this case was not an error of procedure such as a failure to comply with a rule or practice direction. It was simply a drafting error on the part of the solicitors. There was nothing "procedural" about the error, and it was not the kind of error which came within the scope of CPR 3.10. He added that if, contrary to his opinion, there was an error of procedure which could be remedied under rule 3.10, then he would have agreed with the district judge that it should have been remedied. The claimant now appeals with the permission of this court.
For reasons that will become apparent, CPR 7.6(2) and (3) are central to the issues that arise on this appeal. So far as material, CPR 7.6 provides:
"(1) The claimant may apply for an order extending the period within which the claim form may be served."
(2) The general rule is that an application to extend the time for service must be made-"
(a) within the period for serving the claim form specified by rule 7.5; or
(b) where an order has been made under this rule, within the period for service specified by that order.
(3) 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 or by an order made under this rule, 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."
In Vinos, this court had to consider the relationship between rule 3.10 and rule 7.6(3). The claimant issued his claim form about one week before the expiry of the limitation period, but due to an oversight, his solicitors did not serve it until 9 days after the expiry of the 4 month period specified by rule 7.5(2). He applied for an extension of time for serving the claim form. He accepted that he could not satisfy the conditions of rule 7.6(3)(a) or (b), but contended that the court could grant the extension under rule 3.10 on the grounds that a failure to serve the claim form within the prescribed period was an error of procedure which could be corrected under the general power conferred by that rule. This court held that rule 3.10 cannot be invoked to obtain an extension of time for service of a claim form after the end of the period specified by rule 7.5(2) in circumstances where an extension of time...
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