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Totty v Snowden; Hewitt, Wirral, Cheshire Community NHS Trust, Court of Appeal, 31 July 2001

6 August 2001
The issues

Procedure – Extensions of time for service of claim form – Particulars of Claim not complying with requirements of Part 16, Civil Procedure Rules.

The facts

This was yet another case involving the courts powers under part 7.6 in respect of time for serving the claim form. The Court of Appeal considered two contrary decisions of the courts below in each case. Both defendants argued that part 7.6 applied not merely to Claim Forms but Particulars of Claim, relying on a series of robust decisions following Kaur v CTP Coils Limited (if the strict conditions in part 7.6 (3) are unsatisfied – i.e. court unable to serve claim form or the claimant has taken reasonable steps to serve the Claim Form but has been unable to do so and in both cases the claimant had acted promptly – then other provisions of the Civil Procedure Rules cannot be relied upon to enable the court to extend time for service). The claimants argued that 7.6 applied to the Claim Form only, not to Particulars of Claim and that extensions of time in respect of Particulars of Claim could be dealt with under the courts general case management powers in part 3.

The decision

1. Particulars of Claim were not an integral part of the Claim Form. Coming to the decision, the court considered 7.4 which sets out that Particulars of Claim can be served with the Claim Form or within 14 days of the Claim Form. The claim was not necessarily defective because the Particulars of Claim had not been served.

2. For the defendants to succeed therefore, the court would have to find that the provisions of 7.6 could be applied to Particulars of Claim as well as the Claim Form.

3. Where there were clear express words, in the rules the court was not able to use the overriding objective to achieve what it would otherwise have considered to have been a just result. (see Vinos -v- Marks & Spencer).

Where there were no express words the court had to decide which interpretation was the best reflection of the overriding objective.

The defendant’s interpretation would lead to potentially draconian consequences for minor faults.

In any event, the defendants argument led to an absurd conclusion namely that if the Particulars of Claim fell within part 7.6, the claimant would effectively have to ask for an order for extension of time for service of the claim even if the Claim Form itself had been validly served. (but this is circular surely – if the Claim Form included the Particulars of Claim and service of the Claim Form without the Particulars of Claim will not amount to a valid service?) Therefore the court had discretion under part 3 to extend time for service of the Particulars of Claim in appropriate circumstances.

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