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Steele v Mooney, Court of Appeal, 8 February 2005

21 February 2005
The issues

CPR 3.10 – Extension Of Time Of Claim Form – Procedural Error – CPR 7.6

The facts

The Claimant pursued a complaint relating to her alleged negligent treatment in the Nuffield Hospital, Ipswich. The operation which it was alleged was negligent occurred in 9th May 2000. She did not consult solicitors until 22nd April 2003. The Claim Form was issued on 6th May 2003. It was not served. On 21st July the Claimant’s solicitor sent a draft Consent Order to the Defendants providing for an extension of time of 2 months for the service of the Particulars of Claim and supporting documents and further providing that the Claimant had leave to serve the Particulars of Claim and supporting documentation including the Claim Form by 5th November 2003. On 13th 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 error, the Claimant solicitor said she had intended to include the word Claim Form in the application but failed to do so.

On 15th August the Court granted an extension of time of 4 months for the service of “the Particulars of Claim and supporting documentation”. On 10th December the Claimant’s solicitor made a further application for an extension of time of 2 months for the service of “the Particulars of Claim and supporting documentation”. The Court extended the time for service until 29th January 2004. On 17th February following a Conference with Counsel the Claimant’s solicitor realised that she had made a drafting error in that she had omitted to include a reference to the Claim Form in the previous Applications. On 18th February 2004 she therefore applied to the Court for an Order that the previous two orders be rectified to state that “there be an extension of time of 4 months to serve the Claim Form, Particulars of Claim and supporting documentation” providing for an extension of time until 29th January 2004. In March 2004 the Deputy District Judge granted the application and amended the two orders accordingly. The Defendants appealed to the Judge who allowed the appeal. The Claimant appealed to the Court of Appeal.

The decision

CPR 7.6 provided that the Claimant could apply for an Order extending the period within which the Claim Form could be served provided that the Application was made within the initial period of time allowed for serving the Claim Form or where a previous Order had been made within the period for service specified by that order. If on the other hand the Claimant applied for an Order to extend the time for service of the Claim Form after the end of the original period then the Court could only make the Order if the Court had been unable to serve the Claim Form or the Claimant to take more reasonable steps to serve the Claim Form but had been unable to do so and in either case the Claimant had acted promptly in making the application.

CPR3.10 provided that where there had been an error of procedure such as a failure to comply with a rule or practice direction then that error did not invalidate any step taken in the proceedings unless the Court so ordered and further that the Court could make an order to remedy the error.

In Vinos v Marks & Spencer the Court had considered the relationship between Rule 3.10 and Rule 7.6 and in particular 7.6(3) providing for the limiting of circumstances in which the Court could make an Order for an extension where the application was made after the initial period of time allowed for service of the Claim Form.

The Court decided that Rule 3.10 could not be used to obtain an extension of time for service of the Claim Form in circumstances where an extension of time was prohibited by the limiting factors in Rule 7.6(3).

“Procedural errors” were not confirmed to failures to comply with a Rule or Practice Direction. The party might for example do x when he intended to do y where both x and y were procedural steps and both were permissible. The Judge below had distinguished a procedural error within the scope of 3.10 with a drafting error. But this was not a true distinction. The drafting error in this case for example was the error of procedure.

The phrase “error of procedure” in CPR 3.10 should not be given an artificially restrictive meaning. It had been argued for the Defendant that if Rule 3.10 could be invoked to correct applications in this way then it could also be used to correct applications made within the 4 month period which had nothing to do with extensions of time at all. This would be absurd. The error in such a case would not lie in a mistaken application which had nothing to do with service of the Claim Form but in the fact that the Claimant had simply failed to apply for an extension of time. There was a difference between making an Application which contained an error and erroneously not making an Application at all and it was important for a proper Application with a Vinos principal to bear this distinction in mind.

The error in this case fell into the first of these two categories. It was clear that the Application for an extension of time was intended to be an Application for an extension of time for service of the Claim Form. The facts of this case Rule 7.6 (3) did not preclude the Court from making an Order under Rule 3.10.

Had the Application been made in the appropriate way then there was no doubt that it would have been allowed in both August and December 2003. The Claimant’s solicitors had sought more time because there were three possible Defendants and they did not know whether the Claimant had a claim with any real prospect of success against any and if so which of them. They could proceed against any of the Defendants without the support of an expert and they needed the extension of time to obtain the expert’s report. It was a quite different situation from that which often arose where a Claimant sought an extension of time for service of the Claim Form because they wanted further time to prepare a Schedule of Loss. The outstanding information in this case went to the heart of the Claimant’s case.

Appeal allowed.

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