Totty v Snowden Hewitt v Wirral and West Cheshire Community NHS Trustt
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE KAY,LORD JUSTICE CHADWICK |
| Judgment Date | 31 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1415 |
| Docket Number | B3/2000/3334 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2001 |
[2001] EWCA Civ 1415
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
(His Honour Judge S P Grenfell)
Royal Courts of Justice
Strand
London WC2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(His Honour Judge Marshall Evans QC)
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lord Justice Chadwick and
Lord Justice Kay
Lord Justice Peter Gibson
Lord Justice Chadwick
lord Justice Kay
B3/2000/3334
B1/2000/3729
MR DAVID PEARCE HIGGINS QC (Instructed by Beachcroft Wansbroughs, 7 Park Square East, Leeds, LS1 2LW) appeared on behalf of the Appellant.
MR MICHAEL HARRISON QC (Instructed by Jones Goodall, The Grain Store, Woolpacks Yard, Off Westgate, Wakefield, WF1 2SH) appeared on behalf of the Respondent.
MR MICHAEL HARRISON QC (Instructed by A Halsall & Co, 48 Hamilton Square, Birkenhead, Wirral, CH41 5BD) appeared on behalf of the Appellant.
MR BENJAMIN BROWNE QC (Instructed by Weightmans, Richmond House, 1 Rumford Place, Liverpool, L3 9QW) appeared on behalf of the Respondent.
Kay LJ will give the first judgment.
The issue raised by these two appeals is whether the Court has a discretion to grant an extension of time to a claimant who has served a claim form within the time prescribed by the Civil Procedure Rules but who has either not served particulars of claim, or alternatively has failed to serve particulars that comply with the requirements of Part 16 of the rules, within the period prescribed by rule 7.5. 3. The appeal in the case of Totty v Snowden is against a decision of His Honour Judge Grenfell sitting in the Queen's Bench Division of the High Court in Leeds dated 13th October 2000, by which he rejected an appeal brought by the defendant against a decision of District Judge Giles. On 19th July 2000, District Judge Giles had declared that pursuant to his powers under rule 3.10, the particulars of claim should be deemed to have been served within the period prescribed by the rules and refused the defendant's application for the claim form and the particulars of claim to be set aside. Judge Grenfell upheld the District Judge's ruling that there was a discretion to extend time and also upheld the District Judge's exercise of his discretion.
The appeal in the case of Hewitt v Wirral and West Cheshire Community NHS Trust is an appeal against a decision of His Honour Judge David Marshall Evans QC sitting in the Liverpool County Court dated 8th November 2000, by which he allowed an appeal from District Judge Jones. On 7th April 2000 District Judge Jones made an order which had the effect of dismissing the defendant's application that service of the claim form be set aside and ordering the claimant to serve particulars of claim that complied with rule 16.4 and paragraph 4 of the Practice Direction supplementing Part 16. Judge Marshall Evans considered the judgment of Judge Grenfell in the case of Totty v Snowden but reached the contrary view that the court did not have a discretion to extend the period of time for service of the particulars of claim. He, therefore, concluded that the District Judge's decision was wrong.
The facts underlying the appeal in Totty v Snowden are as follows. Miss Totty was severely injured in a road traffic accident on 6th June 1996. On 19th August 1999 her solicitors concluded an agreement with Mr Snowden's solicitors that Mr Snowden was liable to the claimant in respect of 85% of such loss and damage as she might prove. An interim payment of £3,000 followed four days later. On 28th September 1999, the day before Miss Totty's 21st birthday and the expiry of the limitation period, the claim form was issued. In October 1999 there was a brief exchange of correspondence between the solicitors in which Mr Snowden's solicitors made clear that they were not prepared to consent to an order for judgment in proceedings that had not been served. On 26th January 2000, two days before the end of the prescribed period, Miss Totty's solicitors duly served the claim form but, having misunderstood the rules, wrote indicating that it was their intention to serve the particulars of claim with a schedule of loss and supporting medical evidence within 14 days. By the time they did so on 9th February 2000, the fourteenth day after service of the claim form, the period of four months from the issue of the claim form had elapsed and they had failed to comply with rule 7.4(2).
The facts relating to Hewitt v Wirral and West Cheshire Community NHS Trust are as follows. Mrs Hewitt alleges that she suffered injury as a result of an incident which occurred on 23rd August 1996 during the course of her employment with the Wirral and West Cheshire Community NHS Trust (“the NHS Trust”). She instructed solicitors to pursue her claim in about June 1999. On 17th August 1999 the solicitors issued a claim form. It had been filled in with little care. That part of the printed form which read “Particulars of Claim (attached) (to follow)” was left with neither of the alternatives deleted. Underneath was typed:
“The claimant claims damages arising from an assault on her by a patient whilst she was employed by the defendant. The assault was the result of the defendant's negligence and/or failure to have sufficient regard for the claimant's safety whilst she was at work.”
The Judge concluded that it was clear that the solicitors had intended to serve particulars of claim at a later date and that they had simply failed to delete the word “attached” on the form. It is common ground that the information in the claim form did not contain the full particulars required by Part 16 and the Practice Direction thereto. Following problems due to service on the wrong authority, the claim form came to the attention of the NHS Trust on 8th December 1999. On 16th December 1999 the period for service of the particulars of claim provided by the rules elapsed. On 12th January 2000, no particulars of claim having been served, the defendant applied to set aside service of the claim form.
The Civil Procedure Rules 1998. Part 7 provides for service of the claim form and the particulars of claim. Rule 7.5 requires that a claim form (unless it is to be served out of the jurisdiction) must be served “within four months after the date of issue”. As already set out above, in each case, there was compliance with this requirement.
Rule 7.4 provides for service of particulars of claim. It reads:
“(1)Particulars of claim must-
(a) be contained in or served within the claim form; or
(b) subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form.
(2) Particulars of claim must be served on the defendant no later than the latest time for serving a claim form.
(3) Where the claimant serves particulars of claim separately from the claim form in accordance with paragraph (1)(b), he must, within 7 days of service on the defendant, file a copy of the particulars together with the certificate of service.”
Rule 7.6 provides for extending time for service of a claim form. The relevant parts read:
“(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.”
Part 16 contains the requirements for the contents of the claim form and the contents of the particulars of claim. Rule 16.2 requires the claim form to contain a concise statement of the nature of the claim, to specify the remedy which the Claimant seeks and contains such other matters as may be set out in a practice direction. Rule 16.2(2) provides:
“If the particulars of claim specified in rule 16.4 are not contained in, or are not served with the claim form, the Claimant must state on the claim form that the particulars of claim will follow.”
The required contents of the particulars of claim are specified by rule 16.4. Such particulars must include a concise statement of the facts on which the claimant relies and also such other matters as may be set out in a practice direction. By paragraph 4 of the practice direction relevant to Part 16, the particulars of claim in a personal injuries claim must contain the claimant's date of birth and brief details of the claimant's personal injuries. The claimant is required to attach to the particulars of claim a schedule of loss and also a report from a medical practitioner about the personal injuries which are alleged in the claim.
Rule 16.8 provides that if a claim form has been issued in accordance with rule 7.2 and served in accordance with rule 7.5, the court may make an order that the claim will continue without any other statement of case.
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...overriding objective or the general power, given by rule 26.9 of the CPR, to rectify matters where there has been a procedural error. In Totty v Snowden [2001] 4 All ER 577 at paragraph [34], Kay LJ, with whom the rest of the court agreed, stated that a specific provision precluded the cour......
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...claimant who ignores time limits prescribed by the rules forfeits the right to have his claim tried.’ 65 [53] In the subsequent case of Totty v Snowden [2001] 4 All ER 577 (in which Peter Gibson LJ was also a member of the court), Kay LJ pointed out (at para. 18) that Vinos v Marks & Spence......
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