0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

Anderton v Clwyd County Council CA

9 July 2002
The issues

Claim Form – deemed date of service – dispensing with service.

The facts

Five cases were heard by the Court of Appeal which took the opportunity of giving guidance on issues arising out of late service of Claim Forms at the end of the limitation period.

The decision

1. The general rule was that a Claim Form had to be served within 4 months from the date of issue.

2. Any Application to extend time for service had to be made within the time for serving the claim, or within the extended periods for service if an Order had been made extending time under Rule 7.6.

3. For First Class Post, the deemed day of service was the second day after it was posted.

4. For a fax sent on a business day before 4.00 pm, the deemed day was that day and otherwise the business day after the day the fax was sent.

5. The deemed day was irrebuttable by evidence of the actual day of receipt. See Godwin -v- Swindon Borough Council. That position was unaffected by the 1998 Human Rights Act.

6. Saturday and Sunday were not excluded from the date of calculation of the day of deemed service. If the Draftsman had intended those days to be excluded then the expression “business day” should have been used. This produced unfortunate results – if a Claim Form was sent First Class Post Friday, it would be deemed to be served on Sunday, but if it were faxed at 5.15 pm on Friday, it would be deemed to be served on Monday. If it was served personally at 5.15 pm on Friday, it would be treated as being served on Monday. Consideration should be given to amending Part 6.7.

7. There was power under Rule 6.9 to dispense with service of the Claim Form, both prospectively and retrospectively. This power should be exercised retrospectively only in exceptional circumstances. There was a distinction between two different kinds of case:-

(a) Cases where Claimants seek an Order retrospectively dispensing with service who have not even attempted to serve a Claim Form by one of the permitted methods and;

(b) Applications by Claimants who have made ineffective attempts to serve in time by one of the permitted methods.

The first type is caught by Godwin and is an attempt to circumvent the limitations in Rule 7.6 (3) on the granting of extensions of time for service of the Claim Form.

This Claimant’s case is one where he needs to be excused altogether from the need to prove service rather than one where he needs permission to serve out of time in accordance with the Rules. The basis of such an application is that there is not point in requiring the Claimant to go through the motions of a second attempt to serve when he has already in fact sent the required documents. Thus, in Chambers -v- Southern Domestic, one of the Appeals, the Claimant succeeded on the 6.9. The Claim Form had in fact been received by the Defendant’s Solicitors before the end of the 4-month period during which time the Defendant had admitted liability and made an offer to settle. The prejudice to the Claimant would have been immense if she had not succeeded.

In considering the exercise of discretion under 6.9, it may be legitimate to take into account other circumstances including any explanations for late service, any criticism to be made of the Claimant or his or her advisors, and any possible prejudice to the Defendant on dispensing with the service.

Comments

Perhaps someone should tell the Post Office – of the Court of Appeal’s expectations of service by post on a Sunday!

focus on...

Legal updates

Non-payment of insurance premiums during the Coronavirus pandemic

The forced closure of many businesses as a result of the Coronavirus pandemic has had a huge impact on the nation’s Gross Domestic Product (GDP). Recent reports from the Office for National Statistics state that the economy was 25% smaller in April than it was in February this year.

View

Legal updates

Reinstatement for property damage losses – when does it apply?

The Court of Appeal has recently considered the correct test for measuring the indemnity for property damage losses and has provided useful guidance on whether an insured needs to intend to reinstate the property to its pre-loss condition.

View

Legal updates

Coronavirus (COVID-19) insurance considerations

With instances of COVID-19 rapidly increasing throughout the UK, many businesses are considering the options available to limit staff and customer exposure to Coronavirus.

View

Legal updates

Insurance annual review 2019-2020

Welcome to our review of 2019 as we look ahead to what is on the horizon for the insurance sector in 2020.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

mailing list sign up



Select which mailings you would like to receive from us.

Sign up