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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Elmes v Hygrade Food Products Plc [2001] EWCA Civ 121 (24 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/121.html Cite as: [2001] EWCA Civ 121, [2001] CP Rep 71

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TROWBRIDGE COUNTY COURT
(His Honour Judge Barclay)

		Royal Courts of Justice Strand London WC2 Wednesday, 24th January 2001

1. LORD JUSTICE SIMON BROWN: This second tier appeal, for which permission was granted by Kennedy LJ, undoubtedly raises an important point of principle within the meaning of section 55(1) of the Access to Justice Act 1999. The question arising is this. When a claim form is served in time but incorrectly (here, on the defendants' insurers instead of on the defendants themselves), is there power in the court, on the claimant's application under CPR 3.10(b) and CPR 6.8, to remedy the error by an order deeming the service to have been good service by an alternative method not permitted by the rules? Such an order in the claimant's favour was made by District Judge Field on 14th April 2000. On appeal, however, it was overturned by Judge Barclay at the Swindon County Court on 27th June 2000. Before us today is the claimant's appeal seeking its reinstatement.
2. The point being one of general application the facts of the instant case are of no particular importance. It is more than sufficient to note that the claim arises out of an accident at work on 28th September 1996, when the claimant injured his back and right leg when lifting a die set in a machine; that in June 1999 the defendants' insurers confirmed to the claimant's solicitors that they would negotiate a settlement of the claim; that proceedings were issued on 28th September 1999, the last day of the primary limitation period; that on 2nd December 1999 the defendants' insurers made a Part 36 offer; and that on 27th January 2000, the last day of the four month period stipulated for service by CPR 7.5(2), the claimant's solicitors faxed the claim form to the defendants' insurers.
3. No point would be served by my rehearsing here the particular arguments advanced and dealt with below. The fact is that neither the district judge nor Judge Barclay had the benefit of the two authorities most directly in point, the unreported decisions of this court in Vinos v Marks & Spencer Plc, before Peter Gibson and May LJJ on 8th June 2000, and Kaur v CTP Limited before myself, Waller LJ and Gage J on 10th July 2000. Let me at once indicate what those two cases decided and then explain how Mr. Porter for the claimant seeks to distinguish them. The position in both Vinos and Kaur was that the claim form in each case had simply not been served in time. The claimants, recognizing that they could not succeed under rule 7.6, sought instead to invoke variously rules 3.9 and 3.10. Rule 7.6(3) provides:

"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 . . . 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."

4. The claimants were manifestly unable to satisfy those conditions. The Court of Appeal held that in those circumstances they could not in effect sidestep their difficulties and escape the apparent consequences of 7.6(3) by reliance instead on rules 3.9 and/or 3.10.
5. Rule 3.9 deals with relief from sanctions and provides that, "on an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances", and there are then set out a number of circumstances included for specific consideration. Rule 3.10 I should quote in full:

"Where there has been an error of procedure such as 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."

6. Giving the main judgment in Vinos May LJ in paragraph 20 said this:

"The meaning of 7.6(3) is plain. The court has power to extend the time for serving the claim form after the period for its service has run out 'only if' the stipulated conditions are fulfilled. That means that the court does not have power to do so otherwise. The discretionary power in the rules to extend time periods - rule 3.1(2)(a) - does not apply because of the introductory rules. 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. Interpretation to achieve the overriding objective does not enable the court to say that provisions which are quite plain mean what they do not mean, nor that the plain meaning should be ignored. It would be erroneous to say that, because Mr Vinos's case is a deserving case, the rules must be interpreted to accommodate his particular case. The first question for this court is, not whether Mr Vinos should have a discretionary extension of time, but whether there is a power under the Civil Procedure Rules to extend the period for service of a claim form if the application is made after the period has run out and the conditions of rule 7.6(3) do not apply. The merits of Mr Vinos's particular case are not relevant to that question. Rule 3.10 concerns correcting errors which the parties have made, but it does not by itself contribute to the interpretation of other explicit rules."

7. I need read no more from May LJ's judgment. Peter Gibson LJ in paragraph 25 posed the issue thus:

"Does the court have the power to extend time for service of a claim form if the claimant only applies after the period provided for in rule 7.6(2) has expired and the conditions in rule 7.6(3) are inapplicable?"

8. and in paragraph 27 said:

"A principle of construction is that general words do not derogate from specific words. Where there is an unqualified specific provision, a general provision is not to be taken to override that specific provision. Rule 7.6 is a specific sub-code dealing with the extension of time in all cases where the time limits in rule 7.5 have not been or are likely not to be met."

9. Giving the leading judgment in Kaur Waller LJ quoted from the judgments in Vinos, and then in paragraph 19 said this:

"It will be noted that there was no reference in that judgment to 3.9. But the reasoning of the court is compelling and, if the situation were that 7.6 applies to the situation which exists in this case, then, as it seems to me, the same reasoning there adopted by the court for saying that no relief could be claimed under 3.10 would be as applicable to 3.9. It may be that 3.9 was not referred to on the basis that it really had no application, since it applied only to situations in which a court had imposed a sanction."

10. The central and critical difference between the instant case and those two cases, submits Mr. Porter in a most able and succinct argument, is that here there was in fact service of the proceedings in time. The claimant accordingly does not need to escape the consequences of being unable to obtain an extension of time under rule 7.6. Rather, he needs only to be allowed to have the service which was wrongly effected on the defendants' insurers deemed nevertheless to have been good service. For this, as stated, he goes not only to rule 3.10 but also, and perhaps more particularly, to rule 6.8. I must therefore set out that rule also. Rule 6.8:

"(1) Where it appears to the court that there is a good reason to authorise service by a method not permitted by these Rules, the court may make an order permitting service by an alternative method.

(2) An application for an order permitting service by an alternative method -

(a) must be supported by evidence; and

(b) may be made without notice.

(3) An order permitting service by an alternative method must specify -

(a) the method of service; and

(b) the date when the document will be deemed to be served."

11. I should note in passing rule 6.9:

"(1) The court may dispense with service of a document.

(2) An application for an order to dispense with service may be made without notice."

12. Mr. Porter's argument runs essentially as follows. The service of this claim on the insurers, instead of on the defendants themselves was an error of procedure within the meaning of Rule 3.10. So much indeed is accepted by the respondents. True it is that CPR 7.6 circumscribes the exercise of a discretion to extend time for service. It says nothing, however, as to the exercise of a discretion to deem service to be good. CPR 6.8 and 6.9 are the rules applicable to that situation. Those rules govern orders permitting service by an alternative method "where it appears to the court that there is good reason" and, indeed, to dispense with service altogether. It is, submits Mr. Porter, sufficient "good reason" that the defendants' insurers were in fact dealing with this claim and that they would suffer no conceivable prejudice through the proceedings being served on them rather than upon their insured. The rules, accordingly, should be interpreted to give effect to the overriding objective in CPR 1.2. Unless, he submits, the rules unambiguously require it, claims should not fail because of a mistake which has caused no prejudice and can be corrected. Here, he submits, the rules do not unambiguously require that result. Given that the court has power to dispense altogether with service under 6.9, it must have a lesser power to deem service upon insurers in appropriate circumstances to be good service on the insured.
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 was never an application for alternative service, let alone for an order dispensing with service. Nor, it seems to me worth observing, would it ever have been proper to make any such order in this case. Mr. Porter acknowledges as much. As he observes, but for the mistake there would never have been any necessity for such an order.
14. I should add this. As I indicated to Mr. Porter during the course of his submissions, the views which I have just expressed in fact accord with a decision of another division of this court, consisting of Thorpe and Buxton LJJ, reached only yesterday in Nanglegan v Royal Free Hospital. The error there was in the claimant having served proceedings on the defendant himself instead of upon his solicitors. This contravened rule 6.5(4), which provides that any document to be served must be sent "to the address for service given by the party to be served", the defendant there having stipulated that service should be effected upon his solicitors. The claimant sought to overcome that mistake by invoking respectively rules 6.1 and 6.8. Rule 6.1 was held to be too wide and general in its application to avail the claimant and 6.8 was held, consistently with my own view, to be prospective rather than retrospective in its operation. It cannot be applied ex post facto to cure some error already made in effecting service. True, there was apparently no attempt to pray in aid rule 3.10. As it seems to me, however, that rule cannot of itself carry the day for the appellant here.
15. Mr. Porter drew our attention to another unreported decision of this court, Gregson v Channel Four Television Corporation, again before Peter Gibson LJ and May LJ, on 11th July last. That case, however, dealt with a very different situation, in which the court was able to conclude that the right party had been served in time, albeit under the wrong name. That error was one which was able to be corrected under the provision of CPR Part 19.5. True it is that in paragraph 24 of his judgment May LJ expressed the tentative view that, in circumstances where the court had decided to allow a new party to be added or substituted, a consequential order for the service of the claim form on the new party does not have to be rigidly confined by rule 7.6(3). In my judgment, however, even supposing that to be right, it cannot affect the outcome of the instant appeal where a very different question arises, namely the consequences of service on altogether the wrong party. It follows from this that in my judgment there was no power here in the court to correct this unfortunate mistake. I would accordingly dismiss the appeal.
16. MR. JUSTICE PENRY-DAVEY: I agree.
Order: Appeal dismissed with costs to be agreed and if not agreed to be the subject of detailed assessment; application for permission to appeal to House of Lords refused. (Order not part of the judgment of the court)