England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
(HIS HONOUR JUDGE HALBERT)

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th August 2007

Lord Justice Jacob:

1. This is a renewed application for permission to appeal, permission having been refused on the papers by Rix LJ. It is also an application for permission for a second appeal and so the criteria of Rule 52.3 applies, namely that the appeal would raise an important point of principle or practice. In addition, of course, there has to be a real prospect of success, as called for by Rule 52.3(6).
2. The decision of the subject of the proposed appeal is that of HHJ Halbert sitting in the Chester County Court on 19 March 2007. He upheld the decision of District Judge Hoffman given on 18 December 2006. The appellant, aged 16 at the time, suffered an injury at work to his hand; this, I think, was on 11 June 2001. The injury was allegedly caused by the defendant employer's negligence or breach of statutory duty. The claimant reached the age of 18 on 24 December 2002. There is no dispute that the limitation period expired three years later on 24 December 2005.
3. Before proceedings were issued there was correspondence about this claim and about a different claim said to arise from bullying at work. The judge described this correspondence as follows:

"Letters of claim were written, not by his present Solicitors, in relation to the bullying in December 2002 and in relation to the laceration injury in March 2003.

4. The Insurers for the Defendant Employers denied liability in respect of both in April 2003 and in March 2004, nearly a year later, the Claimant's Solicitors wrote saying, 'We do not intend to pursue the bullying claim'.

5. In November 2005 further copies of the two letters of claim were sent and the Insurers replied -- they suggested that the file was reviewed because liability was denied."

So before proceedings of any kind were issued, the defendants were told that there was no intention to pursue the bullying claim.

4. On 7 December 2005, shortly before the expiry of the limitation period, a claim form was issued in the Mold County Court. Under the heading "Brief Details of Claim" it said: "Loss and damage arising out of abuse at work". Under the normal rules one has four months after issuing the proceedings to serve them. The claim form was served within that four-month period on 14 March 2006 accompanied by Particulars of Claim and a medical report. Both the Particulars and the medical report related only to the hand injury. There was no mention whatever of bullying. The defendants took the point that this was a claim in respect of the hand injury which was out of time by reason of the Limitation Act 1980. Section 11 of that Act provides a special time limit for actions in respect of personal injuries. Section 11(3) says:

"An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.

(4) Except where subsection (5) below applies, the period applicable is three years from-

(a) the date on which the cause of action accrued."

5. It is common ground that the defendant, having been a minor at the time of the accident, gets the benefit of the appropriate provisions of the Act and that period as I have said expired on 24 December 2005.
6. The real question is whether an amendment to alter what is said on the claim form to make it say what, given the other material served with it, it clearly is intended to say, amounts to bringing an action outside the limitation period. It appears to me to be arguable that it is not. We were referred to Sterman v Moore [1970] 1 QB 596, a case decided under the old Rules. A writ had been issued which was defective. It claimed a sum of money and damages for loss of earnings and for "special damages and costs", but did not say why that claim was being brought. It never mentioned any cause of action. It did not allege negligence or breach of statutory duty. It was said that the writ was defective, could not be cured outside the limitation period and that therefore the claim was barred. Lord Denning MR took a liberal view of the position. He said at page 604:

"I think we should give full effect in the wide words of order 20 rule 5 (1). We should not cut them down by reference to sub rules (2), (3), (4) and (5). I adhere to the view I expressed in Chatsworth Investments v Cussins Contractors Limited [1969] 1 WLR 1 at page 5:

'Since the new rule I think we should discard the strict rule of practice in Weldon v Neale [1887] 19 (QB) 394. The court should give order 20 rule 5.1 its full width. It should allow an amendment whenever it is just to do so even though it may deprive the defendant of a defence under the statutory limitations'."

He went on to say:

"I withdraw not one whit of those words and I think we should apply them here. Here was a plaintiff who issued his writ and served it on the defendants well within the period of limitation. They knew perfectly well that the plaintiff was claiming damages for his fall from the trestle because it was their fault yet they seek to bar him on the most technical consideration, just because he omitted the words 'for negligence and breach of statutory duty'. I do not think we should allow this technical objection to prevail".

7. Salmon and Cross LJJ agreed. So there was a case where the original, concise document was inadequate and was supplemented out of time by making it clear what the claim was for, the defendant having known that all along.
8. It is arguable that in the position is the same in circumstances such as those of this case. 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? After all it is apparent not only that a mistake has been made but what that mistake was. The judge took the view that the claim was in time and there appears to be much to be said for it.
9. So 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. There would be an abuse of course if, when the party issued the document, it merely had the intention of claiming that which was stated in the document and sought to change that intention by surrounding documents which were served later with the document. But that is not this case. It seems to me that this is quite an important question of principle and is therefore worthy of consideration by this court.
10. Accordingly, I would grant permission to appeal.

Lord Justice Mummery:

11. I agree. I will add only a few words because I was originally of the view that this appeal had no real prospect of success, having regard to the natural and ordinary meaning of the CPR provisions in 17.1 and 17.4 read in the context of Sections 11 and 35 of the Limitation Act 1980. I have however been persuaded by Mr Stockwell that there is a reasonably arguable case based on the decisions to which my Lord has referred, Sterman v Moore and the decision of Cooke J in the Nomura  case. 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. In this case all the documents were served at the same time and it would have been obvious to the person receiving them, quite apart from the prior correspondence, that there was a clear mismatch between the claim form which was issued within time and the case which was set out in the details of the accompanying documents. For those reasons, which I think are essentially the same as those given by my Lord, Lord Justice Jacob, I think we ought to grant permission to appeal.

Order: Application granted.