Evans v CIG Mon Cymru Ltd

Shortly after the expiry of the limitation period, a claimant serves on a defendant, by post, a claim form and particulars of claim together with a schedule of losses and a medical report. The letter serving the documents, the particulars of claim and the medical report make it clear that the claim is intended to be for damages for an accident at work. By a clerical error, the claim form refers not to an accident at work but to “abuse” at work.

The defendants’ solicitors spot the discrepancy. They argue that the intended action for damages for the accident at work cannot now proceed. Are they right in law? That in short is in the question before us. The district judge and the circuit judge have both held that the defendants are right. The circuit judge came to that conclusion with great reluctance. He said:

“The position we are in has no merit whatever. This is an obvious minor error, which has had drastic consequences for the solicitors responsible for drafting the document and it is a pity that I have not got the power to relieve them of the consequences of such a minor error; nevertheless I have not, and I so hold.”

The claimant appeals against his decision. CPR 52(13) restricts second appeals to cases where the appeal would raise an important point of principle or practice or there is some other compelling reason for this court to hear it. Permission to appeal in this case was given by Jacob and Mummery LLJ. In giving leave, Jacob LJ asked rhetorically:

“Where a claim form read alone wrongly identifies the claim, but when read together with the other documents with which it is served, is clear, why should one say the claim is out of time?”

He went on to observe:

“So the legal position may be this: that when what is served in time as a whole makes clear what the claim is for, it is possible to correct the earlier issued unserved claim form, provided there is no abuse of process involved… It seems to me that this is quite an important question of principle and is therefore worthy of consideration by this court.”

To similar effect, Mummery LJ said that he considered that:

“…there may be a power to amend the claim form which when it is served at the same time as the particulars of claim and the medical report, exhibits an obvious mismatch between what is in the claim form and the particularised case pleaded in the particulars of claim and evidenced by the medical report.”

He went on to observe that, in this case, all the documents were served at the same time and it would be obvious to the person receiving them that there was a clear mismatch.

It is a narrow point but, before addressing it, I will sketch the facts in a little more detail. The claimant, Darren Evans, was born on 24 December 1984. After leaving school he worked for a time as a packer in the defendant’s meat factory on Anglesey. In this action he seeks to claim damages for personal injuries resulting from an injury to his hand, allegedly caused by an accident at work in summer of 2001 when he was aged sixteen.

The claim was first intimated by a letter from his solicitors in March 2003. Three months earlier, the solicitors had written a letter of claim to the defendants in respect of alleged bullying at work. In April 2003 the defendants’ insurers wrote to the claimant’s solicitors, denying liability in respect of both claims. A year or so later, on 31 March 2004, the claimant’s solicitors said, in correspondence with the insurers:

“We do not intend to proceed with the bullying claim at this stage in the interests of proportionality. We are leaving open the possibility of bringing the bullying claim in at a later stage.”

Thereafter, it seems that little or no progress was made for a considerable time. The claimant attained his majority on 24 December 2002, so the limitation period for his personal injury proceedings would expire three years later. On 7 December 2005 a claim form against the defendants was issued in the County Court on the application of the claimant’s solicitors. Under “Brief Details of Claim” it said: “loss and damage arising out of abuse at work”.

It is said on the claimant’s behalf, and has not been challenged by the defendants, that this was a purely administrative error. His solicitors’ instructions and intention were to issue proceedings in respect of the accident at work.

The claim form, particulars of claim and a medical report were served together under cover of a letter dated 14 March 2006. This was within the time permitted under the rules for their service, but by now outside the limitation period. The other documents all referred to the accident at work.

On receipt of the documents, the defendants’ representatives spotted the mismatch. They filed and served an acknowledgement of service on 20 March 2006, followed by a defence dated 19 April 2006. This document stated:

“1)

The defendant denies the relevance of the particulars of claim. The claim form has been issued in respect of a claim for loss and damage arising out of abuse at work. The particulars of claim relate to an incident when the claimant has cut his hand with a knife. 2) If the claimant does not withdraw the particulars of claim, the defendant will make application to strike out particulars of claim. 3) The defendant reserves the right to plead to particulars of claim if the claimant is allowed to proceed.”

On receipt of that document the claimant’s solicitors at once realised the unfortunate error they had made and moved swiftly to confirm to the defendants’ solicitors what they must, in any event, have suspected from the documents which they had received, namely that the reference to abuse at work in the claim form was an error.

On 26 April 2006 the defendants’ solicitors applied to strike out the particulars of claim on the ground that they were irrelevant to the matter in respect of which the claim form had been issued. The claimant’s solicitors reacted to this initially by a letter dated 2 May 2006, in which they said as follows:

“We refer to the above matter in our telephone conversation whereby you confirmed to us the reason that you were making an application, because the claim form indicated that the claim arose out of an abusive process, yet the particulars of claim suggested that they arose out of an injury sustained from a cut to the finger. We confirmed to you that your clients were aware that there were two claims ongoing and that we have subsequently dropped the claim for the abuse at work. You confirmed that, whilst you recognised this and that your clients were aware of both claims and that the claim for abuse of work had been dropped, you had been advised not withstanding that to proceed with your application…”

On 6 May 2006 the claimant made an application to amend the claim form to delete the word “abuse” and insert the words “an accident” as part of the directions proposed by the claimant in response to the allocation questionnaire.

At a hearing on 18 September 2006, District Judge Hoffman held that the matter was specifically covered by CPR 17.4, to which I will come. He held that this precluded the court from allowing the amendment sought by the claimant in circumstances where the limitation period had expired. He accordingly allowed the defendants’ application to strike out the particulars of claim.

The claimant appealed and the matter was heard by His Honour Judge Halbert on 19 March 2007. His reasoning was fuller but to the same effect as that of the district judge. He held that if one compared the original wording of the claim form with the proposed amended wording the latter presented a new claim, and that the amendment of the document was barred by Rule 17.4.

I turn from the facts to the rules. Rule 7.2 provides that proceedings are started when the court issues a claim form at the claimant’s request. It notes that part 16 sets out what the claim form must include. Except in cases where the claim form is to be served out of jurisdiction, Rule 7.5 requires it to be served within four months from the date when it is issued. Rule 7.4 requires that particulars of claim must be served either with the claim form or within fourteen days after service of the claim form, and in any event no later than the end of the period for service of the claim form. Rule 16.2 provides that the claim form must inter alia contain “a concise statement of the nature of the claim”. Rule 16.4 requires that the particulars of claim must contain inter alia “a concise statement of facts on which the claimant relies”. Rule 17 deals with amendments to statements of case. The term “statement of case” is defined in Rule 2.3 as follows:

“Statement of case a) means a claim form, particulars of claim where these are not included in a claim form, defence, part 20 claim, or reply to defence; and b) includes any further information given in relation to them voluntarily or by court order under Rule 18(1).”

In other words, the term refers compendiously to a party’s case as set out in its pleadings. Rule 17.1(1) provides that a party may amend his statement of case -- that is, without leave -- at any time before it is served on the other party. Rule 17.1(2) provides that, after service of a party’s statement of case, it may be amended only with the written consent of all other parties or permission of the court. Rule 17.4 applies where a party seeks to amend his statement of case after expiry of the limitation period. Rule 17.4(2) provides that the court may allow an amendment after the expiry of the relevant limitation period, whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts, or substantially the same facts, as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings. This rule is derived from section 35 of the Limitation Act 1980, as amended. That section provides, as far as relevant, as follows:

“3)

Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any County Court shall allow a new claim … other than an original setoff or counterclaim to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.

4)

Rules of court may provide for allowing a new claim to which subsection 3 above applies to be made as there mentioned, but only if the conditions specified in subsection 5 below are satisfied and subject to any further restrictions the court may impose.

5)

The conditions referred to in sub section 4 above are the following: a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts, or substantially the same facts, as are already in issue on any claim previously been made in the original action.”

The rule which deals with applications to strike out a statement of case is Rule 3.4. This provides that: “The court may strike out an statement of case if it appears to the court a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; b) that the statement of case is an abuse of court’s process or is otherwise likely to obstruct the just disposal of the proceedings, or c) that there has been a failure to comply with a rule, practice direction or court order.”

The case has been succinctly and attractively argued on both sides. Mr Grace, for the respondent, has faced the harder battle because he has been subjected to more questioning from the court and he presented his case with conspicuous clarity. It is convenient to start by considering the defendants’ application to strike out the particulars of claim, not least because that was the first application before court. Although the application did not formally identify the grounds on which it was made, Mr Grace relies upon paragraphs a) and c) of the grounds provided in Rule 3.4 for such an application. He puts his argument in this way: in any proceedings the claim is essentially defined by the claim form. The particulars of claim disclosed no reasonable grounds for bringing the claim, as identified in the claim form (namely, a claim for abuse at work), and were therefore to be struck out under paragraph a). Furthermore, the particulars of claim failed, contrary to the requirements of Rule 16, to provide a concise statement of facts on which the claimant relied to support a claim for abuse at work. They said nothing at all about abuse at work. It is, effectively, the same argument in another form. The foundation of it is that the case is to be identified by reference, and only by reference, to the general description of the claim in the claim form, viewed objectively, albeit that the description may, to the knowledge all parties to the application, have been a pure error.

The power of the court to strike out under Rule 3.4 is discretionary. Mr Grace accepts that if the claimant’s solicitors had themselves spotted the error at any moment prior to service, the claim form could have been amended under Rule 17.1 without application to the court. He does not quarrel with the proposition that the fact that it was spotted only by the defendants has caused them no prejudice at all. On its face, I can see no reason why, in such circumstances, the court should exercise its discretion to strike out the claim form, and every reason in justice for it not to do so. It was, by a common understanding, an error which caused no detriment to anybody.

However, Mr Grace had a further argument why the court does not have such a discretion. The argument runs in this way. For the court to disregard the error in the claim form as an irregularity, causing no prejudice, in respect of which the court could therefore grant relief under its general powers under Rule 3.10, would be tantamount to treating the claim form as though it referred to an accident at work, rather than to abuse at work. Were an application to be made by the claimant to make such an amendment (as the claimant in response to this application went on to do) such an application would, in his submission, be bound to fail by reason of the provisions of Rule 17.4. Therefore, if the court could not cure the mismatch by granting an amendment under Rule 17.4, it would be wrong to deal with the matter by simply refusing the application to strike out under Rule 3.4.

That argument brings me directly to the question of whether an application to amend the claim form would necessarily fail under Rule 17.4. It would be most unfortunate if that were the case in circumstances where, as mentioned, it is common ground that the alteration could have been made immediately before the service and nobody has been misled by it. But if the rules on their proper construction preclude such an amendment being allowed, then the rules must be applied. In applying Rule 17.4 in these circumstances, Mr Grace submits that the court should concentrate, purely and simply, on the claim form, which is the foundation document on which the proceedings depend. So viewed, it is self-evident, he submits, that to change the claim form, so as to alter the word “abuse” to “an accident”, is to substitute a new cause of action. The matter has to be viewed objectively, and the judges below were right to conclude that the rules allowed no escape for the claimant.

That brings me to the point raised by Jacob and Mummery LJJ in granting leave to appeal, whether that is not an over-narrow way of viewing the matter, when the claim form and particulars of claim and supporting documents were all served together. I have already made reference to the definition of the term “statement of case” in the rules.

In my view the just approach is to look at the totality of the documents served. These documents together set out the claimant’s pleaded case. There was an obvious mismatch, but in asking whether the proposed amendment was, in truth, an amendment to raise a new cause of action or merely to clarify an internal inconsistency in the pleaded case is, it is proper to look at the pleaded case as a whole. When one does so, it is clear, in my judgment, that what was sought to be done by the subsequent application to amend was not, in substance, to raise any new claim at all, but merely to correct an obvious formal error. I reject the argument that an amendment to correct that clerical error was prohibited by Rule 17.4 and, in my judgment, there was nothing to prevent the court from exercising its general discretion to do justice in response to the application to strike out the particulars of claim. If the circuit judge had considered that he had such a discretion, it is plain how he would have exercised it and, in my judgment, rightly so. I would therefore allow this appeal and restore the action.

I agree with Toulson LJ, and gratefully adopt what he says. I would like to add one or two observations for this reason. What appears to me to be the crucial point in this case is the meaning of the expression “abuse at work” in the claim form.

I start by applying the usual rules of interpretation. The claim form is a unilateral document which sets out the cause of action which the claimant claims to have and wants to rely upon. It must be interpreted objectively -- that is, by reference to the words according to their objective meaning. On the other hand, account must be taken of the factual matrix. That matrix would include communication between the parties made before or at the same time as the service of the claim form. As Lord Steyn said in R (Daly) v Secretary of State for the Home Department [2001] 2AC 532 at [28]: “in the law, context is everything”.

Toulson LJ has gone through the sequence of the communications between the parties, but I attach particular importance to the following documents. On 19 March 2003 there was the letter required by the protocol, setting out the claim of the claimant and referring to the accident to the claimant’s hand. Then, in March 2006, the claim form and particulars of claim were served together and then, in May 2006, the solicitors for the claimant wrote to the defendant, and they referred to a further telephone communication which chronologically occurred either at the time of the letter in 2003 or shortly thereafter, which was to the effect that the claimant had dropped the claim for abuse at work and was focusing on the claim for personal injury and that alone. There was, therefore, a telephone communication at an earlier point in time.

As Toulson LJ has explained, there is no suggestion that the claimant deliberately referred to abuse at work in the claim form, intending to raise a claim for that. Nor is there any suggestion that the defendant understood the claimant to be doing so. So there is an obvious conflict between the claim form and the particulars of claim. They cannot both be right. In my judgment, on the ordinary rules of interpretation, the court would say that the words “abuse at work” in a claim form are an obvious clerical error which can be corrected, as a matter of interpretative, to accord with their objective meaning in the context or in the light of the factual matrix -- namely, accident at work. The interpreted exercise which is needed is as simple as substituting for the word “abuse” the word “accident”.

Mr Stockwell has presented his case, as Toulson LJ has said, fairly and lucidly. He says that the claim form is a special document and that the court cannot apply the normal rules of interpretation. It must be interpreted in isolation and without reference to communication between the parties, whenever they occur. It is true that the rules impose a number of requirements which touch and concern the claim form. The claim form has a very important function in our procedural system. It is the document which commences proceedings. There are special rules about its service, and I need only summarise the most important rules. There are, as I said, special rules about service, and the time for service, and then the extension of time of service. There are special rules about what the claim form must contain. There is a special rule about amendment and there are, importantly, special rules about adding or substituting new parties or claims, or altering a party’s capacity after the limitation has expired -- CPR 17.4. But I do not see any basis in any of the rules to which we have been referred for saying that the rules regulate the interpretation or meaning of the claim. Nor do I see any rules which, by necessary implication, require some special rule to be applied in this context (contrast the position in Totty v Snowden [2001] 4 All ER 577 as regards to the use of the power to waive irregularities in the context of an extension of time for service). Nor do I consider that because the claim form is a public document the court is compelled to interpret the claim form without reference to the other document once it is issued. So far as the parties are concerned, the claim form is intended to be read with the particulars of claim. As it happens, the public can in general inspect statements of case filed after October 2006, unless the court otherwise directs. Of course, the overriding objective applies, but no one suggests that that would require a contrary interpretation in this case.

As I see it, therefore, the court below was in error in striking out the claim form. I consider that the claim form ought to have been amended in order that it properly reflects it true meaning. Moreover, I have come to the same conclusions as Toulson LJ did about the application of section 35 of the Limitation Act 1980 and CPR 17.4. They pose no problem, because all that is necessary, in my judgment, is to interpret the claim form in its context.

This case involves a comparatively small sum. It is for a sum exceeding £1000 but less than £5000, but it strikes a blow in favour of the more cooperative approach to matters of procedure which was, surely, one of the purposes of the new procedural code contained in Civil Procedural Rules.

I would therefore allow this appeal.

I agree with both judgments. The decisions below represent a stark surrender of substance to form. We should not allow such a thing unless irresistibly driven to do so. For the reasons given by my Lord and my Lady, we are not so driven.