COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
His Honour Judge Longbotham
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAY
MR JUSTICE RIMER
| MELVIN GODWIN
|- and -
|SWINDON BOROUGH COUNCIL
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr David Regan (instructed by Thompsons for the Respondent)
Crown Copyright ©
Lord Justice May:
"(1) A document which is served in accordance with these rules or any relevant practice direction shall be deemed to be served on the day shown in the following table.
(Rule 2.8 excludes a Saturday, Sunday, a Bank Holiday, Christmas Day or Good Friday from calculations of periods of 5 days or less).
|Method of Service||Deemed day of service|
|First class post||The second day after it was posted.|
|Document exchange||The second day after it was left at the document exchange|
|Delivering the document to or leaving it at a permitted address||The day after it was delivered to or left at the permitted address.|
|Fax||If it is transmitted on a business day before 4 p.m., on that day; or
In any other case, on the business day after day on which it is transmitted.
|Other electronic method||The second day after the day on which it is transmitted.|
(2) If a document is served personally-
(a) after 5 p.m., on a business day; or
(b) at any time on a Saturday, Sunday or a Bank Holiday,
it will be treated as being served on the next business day.
(3) In this rule-
"business day" means any day except Saturday, Sunday or a bank holiday; and
"bank holiday" includes Christmas Day and Good Friday."
"A common modern kind of legal fiction. Particularly in statutes it may be provided that one thing shall be 'deemed to be' another, e.g. that a dog shall be deemed to be a natural person, in which case the 'deemed' thing must be treated for the purposes of the statute as if it were the thing it is statutorily deemed to be."
"Service by DX is effected, unless the contrary is proved, by leaving the document addressed to the numbered box:
(1) at the DX of the party who is to be served, or
(2) at a DX which sends documents to that party's DX every business day."
"The alternatives to personal service are allowed because they found a good working presumption (rebuttable, but still a good working presumption) that they will bring the proceedings to the notice of the defendant."
"The rules in this Part apply to the service of documents, except where –
(a) any other enactment, a rule in another Part, or a Practice Direction makes a different provision; or
(b) the court orders otherwise."
"(a) a rule provides that a party must serve the document in question;
(b) the party on whose behalf the document is to be served notifies the court that he wishes to serve it himself;
(c) a practice direction provides otherwise;
(e) the court has failed to serve and has sent a notice of non- service to the party on whose behalf the document is to be served in accordance with rule 6.11."
"(1) Where a claim form is served by the court, the court must send the claimant a notice which will include the date when the claim form is deemed to be served under rule 6.7.
(2) Where the claim form is served by the claimant –
(a) he must file a certificate of service within 7 days of service of the claim form; and
(b) he may not obtain judgment in default under Part 12 unless he has filed the certificate of service."
"(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.
(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly."
"(1) This rule applies where –
(a) the claimant has purported to serve particulars of claim; and
(b) the claimant has entered judgment under Part 12 against the defendant to whom the particulars of claim were sent.
(2) If a claimant who has entered judgment subsequently has good reason to believe that the particulars of claim did not reach the defendant before the claimant entered judgment, he must –
(a) file a request for the judgment to be set aside; or
(b) apply to the court for directions.
(3) The claimant may take no further step in the proceedings for the enforcement of the judgment until the judgment has been set aside or the court has disposed of the application for directions."
"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."
"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."
"56. In these circumstances striking out this claim is not dealing with the case justly. It would in my view be an affront to justice and if the rules required that result then there would be something seriously wrong with the rules. The rules, however, are not defective. Rule 6.9 enables the court to reach a just result. If reservice can be dispensed with, so can service in the unusual circumstances of this case.
57. The remarks of Lord Justice Simon Brown [in Elmes], with which Mr Justice Penry-Davy agreed, are obiter and although persuasive are not binding on me. The core of Lord Justice Simon Brown's judgment on this point is that rule 6.8 cannot be operated retrospectively. He appears to rule out use of rule 6.9 for the same reason. The use of rule 6.9 here is not strictly retrospective use. The claimant is entitled to say here, with these facts and circumstances, in the court's discretion the court should exercise the power to dispense with the service. In all these circumstances I do exercise that discretion and dispense with service. He [s.c. the defendant] does lose a fortuitous limitation defence but there is otherwise no prejudice to the defendant on such an order being made and the matter should now proceed on the pleadings as they stand on particulars of claim and defence and no more time should be taken up on procedural wrangling."
"19. I do not believe, for example, that if a claim form is served on a defendant in fact on 7th November and he then writes to the claimant to say: "I have the claim form. I calculate that I must acknowledge service by 14 days from now namely 21st November." The claimant could reply, "Oh no. I posted this letter on the 3rd. You are deemed to have been served on the 5th. Therefore, your time expires on the 19th." That to my mind would be nonsensical. It would equally be nonsensical if it were not open to the defendant to prove, where required, that he had never received the claim form at all and, indeed, that it had just be handed to him by a neighbour in whose letter-box it had accidentally been posted while that neighbour had been on holiday.
20. I think, therefore, that the presumption remains a rebuttable one and that the evidence in this case does rebut any presumption that the form was served on 5th November."
"Mr Lord, on behalf of the respondents, made written submissions and Mr Peirson made oral submissions by reference to what they submit the position would have been under the former Rules of the Supreme Court. In my judgment, these submissions are not in point. The Civil Procedure Rules are a new procedural code, and the question for this court in this case concerns the interpretation and application of the relevant provisions of the new procedural code as they stand untrammelled by the weight of authority that accumulated under the former Rules. … There is, in my judgment, no basis for supposing that rule 7.6 in particular was intended to replicate, or for that matter not to replicate, the provision of former rules as they had been interpreted."
"Interpretation to achieve the overriding objective does not enable the court to say that provisions that 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' 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 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' particular case are not relevant to that question. … If you then look up from the wording of the rules and at a broader horizon, one of the main aims of the Civil Procedure Rules and their overriding objective is that civil litigation should be undertaken and pursued with proper expedition. Criticism of Mr Vinos' solicitors in this case may be muted and limited to one error capable of being represented as small; but there are statutory limitation periods for bringing proceedings. It is unsatisfactory with a personal injury claim to allow almost 3 years to elapse and to start proceedings at the very last moment. If you do, it is in my judgment generally in accordance with the overriding objective that you should be required to progress the proceedings speedily and within time limits. Four months is in most cases more than adequate for serving a claim form. There is nothing unjust in a system that says that if you leave issuing proceedings until the last moment and then do not comply with this particular time requirement and do not satisfy the conditions of rule 7.6(3), your claim is lost and a new claim will be statute barred. You have had three years and four months to get things in order. Sensible negotiations are to be encouraged, but protracted negotiations generally are not."
Mr Justice Rimer:
"It has been remarked upon high authority that in considering 'deeming' provisions in statutes it is important to have in mind what appears to be the purpose of their enactment [and Russell L.J. then listed three authorities]"
In the DEG-Deutsche case, Robert Walker L.J., with whose judgment Aldous L.J. agreed, then proceeded to deal with the appeal on the basis that those authorities showed that the statutory hypothesis is to be carried out as far as is necessary to achieve the legislative purpose, but no further (see  3 All ER 878, at 883). I approach this case on that basis.
Lord Justice Pill: