A problem frequently arises when, for one reason or another – most frequently the late arrival of the client in a solicitor’s office – the limitation period is nearly up, but one has not got the medical report or one has not got the materials needed for the drafting of the Particulars of Claim or indeed has grave doubts about whether the claim is viable, but plainly proceedings need to be commenced notwithstanding. In those circumstances, it is recognised as the best practice, following CPR 6.4(1)(b), to issue a claim form but to notify the court that the Claimant wishes to serve the Claim Form. If one does not do that, the court will serve the Claim Form automatically, whereas if you undertake to serve it yourself, you will have up to four months within which to serve the Claim Form. During that time, one can ensure that what needs to be done in order to present a coherent and correctly presented claim can be done.
But what if, as regrettably happens quite frequently, the court disregards the notice that the Claimant wishes to serve the Claim Form and serves it? If this is valid service, the timed succession of events for service of the Particulars of Claim and then of the Defence must follow. That is exactly what the Claimant’s solicitor does not want.
It was at one time thought that such a service, being contrary to 6.4(1)(b) was therefore a nullity. That is the conclusion which was reached by Judge Mitchell in the London Civil Justice Centre in Stoute-v-LTA Operations Ltd  1 WLR 79 on appeal from the district judge.
However, on a second appeal, the Court of Appeal held that CPR 3.10 came into play.
“Where there has been an error of procedure such as a failure to comply with a rule or practice direction –
- The error does not invalidate any step taken in the proceedings unless the court so orders; and
- The court may make an order to remedy the error.
The Court of Appeal held that what had occurred, namely the service by the court rather than by the Claimant, was an error of procedure within that rule and therefore the service was not invalid. However, it also followed that the court was ready and willing to make an order to remedy the error.
It follows therefore that, if the court disregards the instruction of the Claimant not to serve the Claim Form and serves it, the Claimant, as soon as it is discovered that the Claim Form has been served contrary to instructions, must make an application to the court to remedy the error. The usual remedy would be to extend the time for service of the Particulars of Claim to a fortnight beyond the date four months after the date of commencing proceedings, that is to say when the instructions to issue the Claim Form have been received by the court. Of course, the court claims a discretion both as to what course it will take and indeed as to the details of the order. Accordingly, one cannot guarantee that the court will allow a full extension of time. The judge may wish to enquire closely as to why such a long period is needed. It is therefore important that in the application the circumstances are set out fully and the justification for a full extension explained.
Obviously, different problems can arise in relation to this situation. It may be that at the time when proceedings are commenced the Claimant’s solicitors are uncertain as to the correct address of the proposed Defendant or as to whether or not they might need to amend before service to include a further Defendant. Whatever be the problem which is created by the premature service, the court has extensive powers to remedy it and should be encouraged to use those powers.
I would only add that r.3.10 is a power which tends to be overlooked, but it is, as the Stoute case explains, an extensive and very useful power, of which advantage can be taken if it is appreciated speedily that a mistake has been made.
JOHN M. COLLINS