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Elmes v Hygrade Food Products Plc, Court of Appeal, 24 January 2001

5 March 2001
The issues

CPR 6.8/6.9 – Service On The Wrong Party – Whether The Court Could Retrospectively Cure The Error.

The facts

The Claimant’s action was one for personal injuries. Proceedings were issued and the Defendant made a Part 36 Offer. On the last day on which proceedings could be served, the Claimant’s solicitors faxed the Claim Form in error to the Defendant’s insurers. It was accepted that it was not possible to argue that time for service should be extended as service had been effected in time. The Claimant argued instead that the Court under CPR 3.9 and 3.10 as permitted to remedy a procedural error and that the service on the insurers was such an error. CPR 6.8 and 6.9 would allow this to be remedied if there was good reason to do so – the good reason being that there had been no conceivable prejudice caused through service on the insurers.

The decision

6.8 could not be applied retrospectively. It was a prospective order. There was no power to correct the consequences of service on the wrong party. Appeal dismissed.

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