Practice and procedure – Claim form – Service – Extension of time – Appellant issuing claim at court office on last day of period allowed for service – Court losing claim form – Appellant receiving sealed claim form backdated resulting in service after expiry of four-month limitation period – Master holding claim form not served in time – High Court upholding decision – Appellant appealing – Whether court having power to backdate issue of claim form – Appeal allowed
The appellant wished to issue a claim form in connection with an alleged agreement made in 2009 concerning a vacant plot of land with development potential in Kings Heath, Birmingham.
The appellant attended the court office in person on 20 July 2020, shortly before the end of the limitation period, and paid the £10,000 issue fee. The court office lost the claim form and required the appellant to produce a new form which was finally sealed and issued on 7 December 2020, almost five months after the claim had been filed. However, it was backdated so as to be sealed with the date of 20 July 2020.
The appellant served the claim form on both respondents within a matter of days but since it was only valid for service for four months from the date of issue, pursuant to CPR 7.5, it was already out of date.
Therefore, the appellant applied for a retrospective extension of time for service pursuant to CPR 7.6 to extend the time for service of the claim form to 10 December 2020. That was refused by a deputy master, and again on appeal by a deputy judge: [2022] EWHC 2073 (Ch).
The appellant appealed to the Court of Appeal contending, amongst other things, that the court had no power to backdate the claim form and was obliged to seal it with the date on which it was actually issued.
Held: The appeal was allowed.
(1) Under CPR 7.2, proceedings were started when the court issued a claim form at the request of the claimant (7.2(1)). A claim form was issued on the date entered on the form by the court (7.2(2)).
The rules treated the act of sealing the claim form and the issue of the claim form as a single act which took place at the same time. There was no express power to seal the claim form with a date other than that on which it was in fact sealed. Rule 7.2(2) was not to be read as conferring a discretionary power on the court to enter some different date on the claim form, but as requiring the court to enter the date when the claim form was in fact issued.
Proceedings were not “started” until the court issued the claim form. On issue, the court had to seal the claim form and the purpose of the seal was to indicate that the claim form had been issued by the court. Until the claim form was marked with the seal, the document had not been issued and the proceedings had not been started.
(2) To read CPR 7.2(2) as conferring a power on the court to select some date other than the actual date of sealing was to read it as in effect conferring a deeming power on the court under which a claim form in fact issued on 1 December 2020 could be deemed to have been issued on 20 July 2020. But that was not what it said expressly, and there was no reason to read the rule as impliedly conferring such a power. The simpler reading of the rule was that it directed the court to enter the date of actual issue.
The purpose of sealing the claim form was to indicate that it had been issued, and it was a simple and straightforward reading of the rules to regard the purpose of adding the date as being to indicate when it had been issued, and hence when the proceedings had started. If that was the purpose, it was more natural to regard the rules as requiring the court to enter the true date when the claim form was sealed and issued rather than a false date.
(3) If the purpose of putting the date of issue on the claim form was to mark the beginning of the period for service, the effect of backdating the date of issue, as the facts of the present case demonstrated, was to give the claimant less time to serve than the rules on their face permitted him to have. Even if the backdating was only a day or two, it still reduced the time available to the claimant to serve; if, as here, the backdating was more than four months, the claimant could not serve within the period specified by CPR 7.5 at all.
An interpretation of the rules that permitted that to happen should not be adopted unless there was some compelling reason why the court should have the power to cut down, or even eliminate altogether, the claimant’s period for service in that way. But there was no reason why the court should be able to do that. The rules posited a simple sequence in which: (i) the claimant took his claim form to the court office; (ii) the court sealed and issued the claim form; and (iii) the claimant then had four months in which to serve. If there was a gap between (i) and (ii), which paragraph 6.1 of Practice Direction 7A expressly contemplated might happen, whether it was of a few days or of several months, there was no reason why that should be treated as abridging, or enabling the court to abridge, let alone eliminate altogether, the period between (ii) and (iii).
(4) In the present case, 20 July was the date when the claim for was received by the court; but it was not the date when the claim form was in fact sealed and issued, and that was the date that the court should have used for the seal. Whatever that date was, it was between 30 November and 7 December 2020, and the service of the claim form on both respondents was therefore in time.
Accordingly, as there was no power in the court to seal a claim form with a date other that the date on which the claim form was in fact sealed, the claim form was validly served within four months of its issue.
Richard Turney (instructed by Direct Access) appeared for the appellant; Henry Bankes-Jones (instructed by BLM LLP) for the first respondent; Marc Brown (instructed by Talbots Law Ltd, of Birmingham) appeared for the second respondent.
Eileen O’Grady, barrister
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