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White v Somerset County Council, Liverpool County Court

12 May 2005
The issues

Service Out Of Time – Validity Of Claim Form – Whether Date On Notice Of Issue Supersedes Date On Claim Form

The facts

The Claimant issued proceedings on 3rd December 2004. The Claim Form was dated with that date. The Notice of Issue was dated 7th December. The Claimant’s solicitor served proceedings on 5th April. The different dates had been caused by an error on the part of Court staff. The Claimant’s solicitor relied on the later date. The Claimant applied for a declaration that service had been effective or if unsuccessful in that application for permission to extend time for service pursuant to CPR 7.6 or in the further alternative, for an Order that service be dispensed pursuant to CPR 6.9.

The decision

The Claim Form is issued on the date entered on the form by the Court (CPR 7.2) (2). The fact that the Notice of Issue incorrectly stated another and later date did not alter this. The Claimant’s solicitor had therefore failed to affect service within the four months permitted by the rules.

The Application for an extension of time under CPR 7.6 failed. The rule had to be construed strictly (Vinos v Marks and Spencer) and it could not be said that the Claimant had taken all reasonable steps to serve the Claim Form.

The Application under CPR 6.9 also failed. The Court only had discretion to dispense with service in exceptional circumstances if there had been an attempt, albeit ineffective, to serve the Claim Form in time (see Anderton v Clwyd County Council and Cranfield v Bridgegrove). Otherwise CPR 6.9 could not be invoked to dispense with service when what was to be done was in substance that which Rule 7.6 (3) forbayed. (See Godwin v Swindon Borough Council).

Claim dismissed.

Comments

For further information on the above case please contact Roger Harris of 2 Temple Gardens at rharris @2tg.co.uk of 2 Temple Gardens and Daniel Turner of Veitch Penny at danielturner@veitchpenny.co.uk

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