Steele v Mooney & Ors

This appeal concerns the interpretation of CPR 3.10 which provides:

“Where there has been an error of procedure such as a failure to comply with a rule or practice direction-

(a)

the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b)

the court may make an order to remedy the error.”

The facts are as follows. The claimant was admitted to the Nuffield Hospital, Ipswich on 9 May 2000 for a vaginal hysterectomy. This was performed by Mr Mooney. Dr Bailey was the anaesthetist in attendance, and the Nuffield Hospital employed the nurses who provided the nursing care. During the surgery, the claimant underwent a sacrospinous fixation to which she alleges she did not consent. She haemorrhaged after the operation. There was a significant delay in treating the haemorrhage which, she alleges, resulted in her recovery being protracted and her suffering further injury. She underwent a further operation and was transferred to the intensive care unit of the local NHS hospital. It is her case that, although she has made a full physical recovery, she is still suffering psychologically from the treatment she received.

She tried to pursue a complaint for about two years and did not consult solicitors until 22 April 2003. The claim form was issued on 6 May 2003, ie only 3 days before the expiry of the limitation period. Mr Mooney, Dr Bailey and The Nuffield Hospital, Ipswich were named respectively as first, second and third defendants. The claim form was not served within the 4 months’ period specified by CPR 7.5(2). On 21 July, Rebecca Watkins, the solicitor who was handling the case on behalf of the claimant, sent a draft consent order to the then proposed 3 defendants in the following terms:

“1.

There be an extension of time of two months for the service of the Particulars of Claim and supporting documents.”

2.

The claimant do have leave to serve the Particulars of Claim and supporting documentation including the Claim Form issued on the 6^th May 2003 upon the 1^st, 2^nd & 3^rd Defendants by 5^th November 2003” (emphasis added).”

The 3^rd defendant’s representatives returned the draft consent order signed and approved. The 2^nd defendant’s insurers wrote on 23 July saying that the parties could not extend the time for service of the claim form by consent, and suggesting that the claimant make a without notice application to the court. There seems to have been no response from the first defendant.

It was in these circumstances that on 13 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 her witness statement, Ms Watkins says that she intended to follow the wording of the draft consent order, and include the words “Claim Form” in the application: their omission was a mistake.

The evidence in support of the application included the following statement by the claimant’s solicitor:

“We wrote to the various treatment providers and record holders on the 28.04.03. We had great difficulty in finding an expert who would prepare a report for liability before the beginning of September. We did not receive the First and Second Defendants’ records until the beginning of July. We were not obviously able to instruct our expert until these records, especially the First Defendant’s records, were received.”

An expert (Consultant Gynaecologist) is currently preparing a liability report, although he does not feel able to comment totally until the missing records are obtained.

As stated previously, a causation report and then condition and prognosis report will need to be obtained on top of the liability report if it is favourable. We do not consider that the above can be provided to us in a shorter period of time than four months.”

On 15 August, Deputy District Judge Stone granted an extension of time of 4 months for the service of “the particulars of claim and supporting documentation”.

On 8 December, Ms Watkins wrote to each of the defendants saying that she required a further short extension of time to serve proceedings on them.

On 10 December, the claimant made a further application for an extension of time of 2 months for the service of “the Particulars of claim and supporting documentation.” The solicitors’ evidence in support of this application stated that the claimant needed further time in order to instruct and be advised by counsel and the liability expert, in particular, as to whether the claim should be pursued against the second and third defendants. Draft reports had been obtained, but they had not been finalised and further investigations were necessary.

On 15 December, District Judge Mildred extended the time for service of the particulars of claim and supporting documentation until 29 January 2004.

Following a conference with counsel, the claimant decided to proceed only against the first defendant. On 17 February, Ms Watkins realised that she had made a drafting error in the applications for an extension of time for service in that she had omitted to include a reference to the claim form. Thus it was that on 18 February 2004, the claimant applied to the court for an order that the orders of 15 August and 15 December 2003 be rectified to state respectively that “there be an extension of time of 4 months to serve the Claim Form, Particulars of Claim and supporting documentation” and “time for service of the Claim Form and supporting documentation be extended to 29.1.04”. The reason given was that:

“When drafting the application notices of 13.8.03 and 10.12.03, the Claimant’s Solicitors meant to ask for an extension of time of the Claim Form (as can be shown in the Consent Order sent to the Defendants on 21.7.03). The Defendants have not been prejudiced by this error. This application is made under CPR 3.10”.

On 15 March 2004, Deputy District Judge Smith acceded to the application and amended the two orders accordingly. She distinguished Vinos v Marks and Spencer plc [2000] 3 All ER 784 to which we shall refer later in this judgment. She said that it was the understanding of both parties that what the claimant was seeking was an extension of time for service of the claim form as well as the particulars of claim and supporting documents. If the applications had included a reference to the claim form, they would not have been opposed by the defendants, and it was more likely than not that extensions of time for service of the claim form would have been granted.

The defendants appealed. On 7 April 2004, His Honour Judge Rudd allowed the appeal. He held that what occurred in this case was not an error of procedure such as a failure to comply with a rule or practice direction. It was simply a drafting error on the part of the solicitors. There was nothing “procedural” about the error, and it was not the kind of error which came within the scope of CPR 3.10. He added that if, contrary to his opinion, there was an error of procedure which could be remedied under rule 3.10, then he would have agreed with the district judge that it should have been remedied. The claimant now appeals with the permission of this court.

For reasons that will become apparent, CPR 7.6(2) and (3) are central to the issues that arise on this appeal. So far as material, CPR 7.6 provides:

“(1)

The claimant may apply for an order extending the period within which the claim form may be served.”

(2)

The general rule is that an application to extend the time for service must be made-”

(a)

within the period for serving the claim form specified by rule 7.5; or

(b)

where an order has been made under this rule, within the period for service specified by that order.

(3)

If the claimant applies for an order to extend the time for service of the claim form after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if-

(a)

the court has been unable to serve the claim form; or

(b)

the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and

(c)

in either case, the claimant has acted promptly in making the application.”

In Vinos, this court had to consider the relationship between rule 3.10 and rule 7.6(3). The claimant issued his claim form about one week before the expiry of the limitation period, but due to an oversight, his solicitors did not serve it until 9 days after the expiry of the 4 month period specified by rule 7.5(2). He applied for an extension of time for serving the claim form. He accepted that he could not satisfy the conditions of rule 7.6(3)(a) or (b), but contended that the court could grant the extension under rule 3.10 on the grounds that a failure to serve the claim form within the prescribed period was an error of procedure which could be corrected under the general power conferred by that rule. This court held that rule 3.10 cannot be invoked to obtain an extension of time for service of a claim form after the end of the period specified by rule 7.5(2) in circumstances where an extension of time is prohibited by rule 7.6(3). At para 20, May LJ said in terms:

“The general words of Rule 3.10 cannot extend to enable the court to do what rule 7.6(3) specifically forbids, nor to extend time when the specific provision of the rules which enables extensions of time specifically does not extend to making this extension of time. What Mr Vinos in substance needs is an extension of time- calling it correcting an error does not change its substance.”

In Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 1 WLR 3206, this court gave guidance as to the application of the power to grant an extension of time for service of a claim form under rule 7.6(2). In that case, the claimant’s solicitors had no good reason for failing to serve the claim form within the specified period. At para 19, Dyson LJ said:

“Whereas, under the previous law, a plaintiff who was unable to show a good reason for not serving in time failed at the threshold, under the CPR a more calibrated approach is to be adopted. If there is a very good reason for the failure to serve the claim form within the specified period, then an extension of time will usually be granted. Thus, where the court has been unable to serve the claim form or the claimant has taken all reasonable steps to serve the claim form, but has been unable to do so, (the CPR r 7.6(3) conditions), the court will have no difficulty in deciding that there is a very good reason for the failure to serve. The weaker the reason, the more likely the court will be to refuse to grant the extension.”

In para 19 of this judgment, the court contemplated the situation that arises where the application, although made within the prescribed period for serving the claim form, is dealt with by the court after the expiry of that period. If the application is dealt with before the expiry of the period, then in deciding whether to grant an extension of time under rule 7.6(2), the court will address the question why the claim form cannot be served within the specified period. The more compelling the reason, the more likely the court will be to grant the extension of time.

A procedural error may take many forms. Rule 3.10 gives a non-exhaustive definition of a procedural error as including a failure to comply with a rule or practice direction. This is not surprising since the rules provide a detailed code of the procedural steps that parties to litigation may and/or must take and the procedural decisions that the court can make. These steps and decisions will sometimes affect the parties’ substantive rights, but that does not alter the fact that they are procedural in character.

In our judgment, it is clear that a failure to serve a claim form within the period specified by rule 7.5(2) is a procedural error (unless the claimant obtains an extension of time under rule 7.6(2) or (3)). This was implicitly accepted to be the position in Vinos, where the argument proceeded on the basis that the failure to serve the claim form in accordance with rule 7.5(2) would have been a procedural error capable of being remedied under rule 3.10 but for the prohibition in rule 7.6(3).

But procedural errors are not confined to failures to comply with a rule or practice direction. A party may take a procedural step which is permitted by the rules and practice directions, but which he takes in error. A party may by mistake do X when he intended to do Y, where both X and Y are procedural steps and both are permissible. There can be no doubt that the making of an application for an extension of time for taking some step in the litigation process is a procedural step, and that an application for an extension of time for service of the claim form (whether under rule 7.6(2) or (3)) is a procedural step, as is an application for an extension of time for service of the particulars of claim under the general power provided by rule 3.1(2) (see Totty v Snowden [2001] EWCA Civ 1415, [2001] 4 All ER 577). If a claimant applies for an extension of time for service of the particulars of claim when he intends to apply for an extension of time for service of the claim form, he makes an error of procedure. The judge’s distinction between a procedural error and a drafting error is not well-founded. In a case such as the present, the drafting error is the error of procedure. The error lies in the fact that the applications were wrongly drafted.

In our judgment, there are three reasons why there is no need to give the phrase “error of procedure” in CPR 3.10 an artificially restrictive meaning.

First, if the phrase “error of procedure” is given a narrow meaning, difficult questions of classification will arise. This will inevitably lead to uncertainty and sophisticated arguments as to how to characterise an error. This would be highly undesirable. It seems to us that a broad common sense approach is what is required.

Secondly, rule 3.10 gives the court a discretion. This must be exercised in accordance with the overriding objective of dealing with cases justly: rule 1.1(1). If remedying one party’s error will cause injustice to the other party, then the court is unlikely to grant relief under the rule. This gives the court the necessary control to ensure that the apparently wide scope of rule 3.10 does not cause unfairness.

Thirdly, the general language of rule 3.10 cannot be used to achieve something that is prohibited under another rule. This is the principle established by Vinos.

In fact, it is common ground that there was an error of procedure in the present case. But it is significant that there is disagreement as to how to characterise the error. Mr Davy submits that the error was the failure to serve the claim form within the period specified in rule 7.5(2) or to obtain an extension of time for doing so. It is only by so characterising the error that he is able to submit that the application that was purportedly made under rule 3.10 was in substance an application for an extension of time under rule 7.6(3). It is common ground that an application on 18 February 2004 under rule 7.6(3) would have failed. Mr Davy submits, therefore, that, since rule 3.10 cannot be invoked to circumvent rule 7.6(3), the application made on 18 February 2004 should have been dismissed and the appeal should be dismissed. It can be seen that this argument, based on the Vinos principle, is founded on the premise that the error sought to be remedied was the failure to serve the claim form in time.

Mr Gimlette characterises the error differently. He submits that the error lay in the failure to include a reference to the claim form in the applications for an extension of time for service of the particulars of claim and supporting documents. It was these errors that led to the orders which the claimant seeks to have amended. Although they were inaccurately expressed, the applications were for an extension of time for service of the claim form. In their letter to the court dated 11 August 2003 enclosing the application, the claimant’s solicitors asked for the matter to be dealt with as quickly as possible “as if the application is refused we will need to serve the proceedings at the beginning of September 2003”. Service of the proceedings would be effected by service of the claim form. Service of the particulars of claim and supporting documents was something different. In substance, the application made on 18 February 2004 was, therefore, an application to correct an error that had been made in the earlier applications as well as the resultant court orders.

We accept Mr Gimlette’s submissions. Mr Davy raised the spectre 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 months’ period which had nothing to do with extensions of time at all. Thus, for example, he suggested that on this approach it would be possible to correct an application for disclosure of documents which had been made in the 4 months’ period (and the consequent order) by substituting an extension of time for service of the claim form. But in our judgment it would be absurd to say that an application for disclosure of documents was made in mistake for an application for an extension of time for service of the claim form. There is no connection between these two applications such that it could be said that the making of the one was in error for the making of the other. The error would not lie in a mistaken application for disclosure of documents, but in the fact that the claimant had simply failed to apply for an extension of time for service at all within the specified period: ie it would be a Vinos case. There is a difference between (a) making an application which contains an error, and (b) erroneously not making an application at all. It is important for a proper application of the Vinos principle to bear this distinction in mind.

In our judgment, the error made in the present case falls into the first of these two categories. The applications for an extension of time were clearly intended to be applications for an extension of time for service of the claim form, but by mistake they referred to the wrong, albeit closely related, document ie the particulars of claim. Our reference to what was intended is not to Ms Watkins’ subjective state of mind. It is to what she must be taken to have intended on an objective assessment of the terms in which the applications were expressed and all the surrounding circumstances. If the error were a failure to make an application for an extension of time at all within the period specified by rule 7.5(2), then an application to remedy that error would in substance be an application for an extension of time after the expiry of the specified period, and would fail for the reasons stated in Vinos: it would in substance be an application for an extension of time for service of the claim form after the expiry of the time for service in circumstances where such an extension of time would be prohibited by rule 7.6(3). But for the reasons that we have given, the application of 18 February 2004 was not in substance an application for an extension of time for service of the claim form. It was in substance an application to correct the applications for an extension of time which were made within the time specified for service by rule 7.5(2) and which by mistake did not refer to the claim form. To remedy the error contained in the applications (and resultant orders) does not circumvent the prohibition in rule 7.6(3).

Before we turn to consider the issues that arise under rule 7.6(2), we should refer to the further submission made by Mr Davy that it is not open to the court to make an order under rule 3.10 thereby retrospectively extending time for service of the claim form. He relies on the decision of this court in Elmes v Hygrade Food Products [2001] EWCA Civ 121. In that case, the claimant served the claim form within the period specified in rule 7.5(2), but on the defendant’s insurers rather than on the defendant. The claimant applied under rule 3.10 to remedy the error of procedure by obtaining a retrospective order under rule 6.8 permitting service by an alternative method. Simon Brown LJ said at para [13]:

“Attractively though the argument is put and tempting though it is to try and find some way of denying the defendants the windfall of a good Limitation Act defence, thereby throwing the relevant liability upon the claimant’s solicitors’ insurers, I, for my part, have no doubt that it must be rejected. The fatal flaw in the argument is this. It necessarily implies that rule 6.8, the rule which provides for service by an alternative method, can be applied retrospectively. If one asks what order the court is to make to rectify the mistake made here by the claimant’s solicitors, it can only be an order under 3.10 that an order for alternative service, not in fact made under 6.8, shall be deemed to have been made. But the plain fact is that no rule 6.8 order here was made and, of course, there never was an application for alternative service, let alone for an order dispensing with service.”

In our judgment, Elmes does not cast doubt on the reasoning that we have expressed. In that case, the court held that an order for alternative service could not be made retrospectively under rule 6.8, and that (applying the Vinos principle) rule 3.10 could not be invoked to do what was prohibited by rule 6.8. Just as in Vinos no application had been made for an extension of time before the expiry of the period specified for service, so in Elmes no application had been made for alternative service before service was purportedly made. Accordingly, in both cases there was no timeous (albeit erroneous) application which could be remedied under rule 3.10. It seems to us that Elmes does not materially add anything to Vinos and does not take Mr Davy’s argument any further forward. We conclude, therefore, that rule 7.6(3) does not preclude the making of an order under rule 3.10 on the facts of this case.

The question remains whether to allow the application to correct the errors in and flowing from the applications for an extension of time would infringe the Vinos principle on the grounds that it was an attempt to achieve by rule 3.10 what could not be achieved by rule 7.6(2). The argument here proceeds on the basis that, in substance, what the claimant was seeking to do in her application of 18 February 2004 was to apply within the period specified for service for extensions of time for service of the claim form by remedying the applications that were made within that period (and the consequent orders) . This involves an application of the guidance given in Hashtroodi and asking whether the applications for an extension of time for service of the claim form made on 13 August and 10 December 2003 should have succeeded.

Mr Davy submits that the applications for an extension of time under rule 7.6(2) should have been dismissed. He says that there was no good reason for not serving the claim form in August 2003. Although some issues of liability remained to be investigated, it was inevitable that if the claim were to proceed the first defendant would be a party, since he was the surgeon who had performed the operation. Fairness to the first defendant demanded that the claim form be served as soon as possible. Until it was served, he did not know whether he was facing proceedings or not. In the meantime, he would feel constrained to investigate the matter. If proceedings were served and the claimant then decided to discontinue, the first defendant would at least have the benefit of some costs’ protection.

We are in no doubt that the applications for an extension of time for service of the claim form should have been allowed if they had been made on 15 August and 10 December 2003. The claimant had a good reason for not serving the claim form within the period prescribed by rule 7.5(2) and for requiring a further few weeks thereafter. The claimant’s solicitors behaved sensibly and responsibly in not serving proceedings when they did not know whether the claimant had a claim which had real prospects of success against any, and if so which, of the three defendants. They could not responsibly proceed against any of the defendants without the support of an expert, and the reason why they needed the extension of time was that they were awaiting the expert’s report. The report was delayed because the first defendant himself had not responded to proper requests for his clinical notes. The situation was quite different from that which often arises where the claimant seeks an extension of time for service of the claim form because he or she wants further time to prepare a schedule of loss. In the present case, the outstanding information went to the very heart of the claimant’s case. Without the expert’s report, she did not know whether she had a viable case. In these circumstances, we think that both extensions of time should have been granted. We do not find it at all surprising that those representing the second and third defendants in the present case understood that the claimant was seeking an extension of time for service of the claim form, and did not object to it.

It follows that rule 7.6(2) does not preclude the granting of relief under rule 3.10.

For the reasons that we have given, neither rule 7.6(2) nor 7.6(3) precludes the granting of relief to the claimant under rule 3.10. The Deputy District Judge exercised the discretion conferred by rule 3.10 in favour of the claimant. On the assumption that, as we have held, she had the requisite jurisdiction, she was plainly entitled to do so. The judge did not say otherwise and Mr Davy has not sought to challenge this exercise of discretion. It follows that this appeal must be allowed.