England and Wales High Court (Queen's Bench Division) Decisions

Anderton v. Clwyd County Council [2001] EWHC QB 161 (25th July, 2001)

Case No: QB/2001/PTA/010 394

IN THE HIGH COURT OF JUSTICE

IN THE APPEAL COURT QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 25 July 2001

THE HONOURABLE MR JUSTICE McCOMBE

   

	RHIANNON ANDERTON	Claimant/ Appellant
	- v -
	CLWYD COUNTY COUNCIL	Defendant

MR NICHOLAS BOWEN (instructed by Teacher Stern Selby) for the Claimant)

MR JOHN NORMAN (instructed by Berrymans Lace Mawer) for the Defendant)

APPROVED JUDGMENT

(TO BE HANDED DOWN)      

Mr Justice McCombe:

1. In this matter, I have before me an appeal from an Order of Master Ungley made in this action on 12 April 2001, whereby the learned Master refused an application for a declaration that the Claim Form in the proceedings had been served correctly and in accordance with the rules. The Master ordered that service of that form was deemed to be on 7 November 2000. The claimant appeals from that order by permission of Mr Justice Buckley, such permission having been refused by the Master himself.

2. The present problem arises in the context of a potential claim by the claimant, Miss Rhiannon Anderton, against Clwyd County Council in respect of alleged negligence by teachers in failing properly to identify learning difficulties alleged to be suffered by the claimant at the time of her education at the council's schools.

3. Earlier proceedings relating to pre-action disclosure of documents led to substantial litigation which went as far as the House of Lords. The decision of the House of Lords is now reported at [2000] 3 WLR 776, although no part of that authority was cited to me as relevant to the present applications. The situation that has arisen is this.

4. The claim form was issued on 5 July 2000, very shortly before the expiry of the primary limitation period, the claimant having been born on 7 July 1979. Judgment in the House of Lords, on the disclosure matter, was delivered on 27 July 2000. The order for disclosure prescribed a period of 42 days for providing the documents. That period was due to expire on 7 September 2000. Time was extended on 4 August 2000, by consent, for provision of the documents, to the extent that the claimant's solicitors agreed not to take any further action upon that order without giving at least 14 days notice. Similarly, on 18 September 2000, the defendant's solicitors agreed an extension of time for service of the particulars of claim to expire on 21 days notice to that effect. No extension of time was agreed for the service of the claim form itself. In accordance with CPR Rule 7.5 the time for service of the claim form expired on or about 5 November 2000.

5. As to service of the claim form the evidence on each side is as follows. For the claimant, a witness statement of Miss Laura Berman of 2 February 2001 of the solicitors firm states in paragraph 5 :

"The form was served by letter dated 3 November."

6. No more is said in that witness statement as to precisely how or in what manner service had been effected. In an exhibit the relevant letter is produced and is indeed dated 3 November 2000.

7. In response, there is a witness statement of Mr David Goodwin of the defendants's solicitors, dated 21 March 2001, saying as follows :

"3. There is now produced and shown to me marked DBG1 a copy of a letter from Teacher Stern Selby dated 3 November 2000 which is date-stamped as having been received on 7 November 2000.

4. Prior to opening incoming post, a member of staff in the post room of my firm's Liverpool office advances the date-stamp by one day and ensures that it shows the correct date before stamping the post. This is the established practice and I believe therefore that as the letter of the 3 November is date-stamped as having been received on 7 November 2000 that is the day it was in fact received."

8. A further statement of Miss Berman for the claimant of 12 April 2001 states in paragraph 2 as follows :

"On 2 February I signed a witness statement which confirmed in paragraph 5 that the claim form was served by letter dated 3 November 2000. For the avoidance of doubt I confirm that I dictated the letter to the defendants solicitors which was typed by my secretary, signed by me and placed in the post tray on Friday, 3 November. The normal procedure thereafter is for the post to be taken to be franked and posted. I have never encountered a problem with this procedure before and I have no reason to believe that the letter was not in fact posted on that day."

9. It is, therefore, submitted by the claimant that by virtue of Rule 6.7 of CPR the claim form is deemed to have been served on Sunday 5 November 2000 and was, therefore, served just in time under the rules.

Rule 6.7 reads as follows :

"6.7-(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: | The day after it was delivered to or

to or leaving it at a | left at a permitted address.

permitted address: |

Fax: | If it 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.

10. In response to the claimant's reliance on Rule 6.7 the defendant submits

(1) That there is inadequate evidence to show that the relevant letter was indeed posted on 3 November 2000 so as to form any basis for the deeming provision in Rule 6.7 to operate ;

(2) that the evidence of Mr Goodwin establishes that the document was in fact received on 7 November 2000 ;

(3) that evidence of the date of actual service overrides any deeming provision in the rules ;

(4) that, in any event, on the true construction of Rule 6.7 (1). Saturdays, Sundays etc. are to be excluded from the calculation of time and that, therefore, the second day after posting in this case was Tuesday 7 November 2000 even if one employs the provisions of Rule 6.7.

11. Mr Bowen for the claimant submits that it can be inferred from Miss Berman's evidence that the letter of 3 November was posted on that day. He further submits that, on its true construction, Rule 6.7(1) does not exclude Saturdays, Sundays, Bank Holidays etc. from the calculation. If wrong about that, Mr Bowen submits that if the claim form must be treated as served on 7 November, an order should be made under CPR Rule 6.9 dispensing with service of the claim form completely.

12. With regard to the evidence, Mr Norman for the defendant submits that no certificate of service has been provided, pursuant to Rule 6.14(2). Such certificate would require a statement of the date on which posting was effected. Rule 16.14 provides as follows:

"(2) Where the claim form is served by the claimant -

(a) he must file a certificate of service within seven days of service of the claim form ; ...."

Rule 6.10 provides that :

"Where a rule, practice direction or court order requires a certificate of service, the certificate must state -

(a) that the document has not been returned undelivered and ;

(b) the details set out in the following table -"

13. The table provides that where the method of service is by post the details must be certified to include "date of posting." It is to be noted that the certificate does not require anything to be inserted as to the class of post used.

14. Mr Bowen on the other hand submits that Rule 6.14(2) is only concerned with the pre-conditions for the obtaining of a default judgment and nothing else.

15. In my view, whether there has been a breach of Rule 6.14(2) or not, I am entitled to review the evidence before me as a whole and draw such inferences as may be proper from it. In my view, the effect of the evidence is this. I am entitled to and do infer that, on a balance of probabilities, this claim form was posted on Friday 3 November 2000 but was only received on Tuesday 7 November 2000. The evidence does not disclose whether such posting was by first or second class post and, in the absence of anything about that, I cannot infer that posting by first class post actually occurred. Thus, I probably cannot find that sufficient has been shown to indicate that the deeming provisions of Rule 6.7(1) are to operate on the basis of a posting by first class post. Thus no question of the application of Rule 6.7(1) arises and the appeal would fail on that ground alone.

16. On the basis, however, that I am wrong about the inferences to be drawn from the evidence and that I can infer that posting was by first class post, the first logical question thereafter is whether the fact of service occurring on a known date overrides the deeming provisions of Rule 6.7(1) in any event. Mr Norman for the defendant submits that it does. His submission is that for the presumption to be irrebuttable there would need to be clear words to that effect and that the provision is really designed to deal with a case where there is no actual evidence of when service was indeed effected. It is, he submits, merely a convenience provision to deal with that situation, where a document has been served and no response is received from the party so served. There is then, in such a case, a means by which the date of service may be ascertained.

17. Mr Bowen points to the contrast, however, between this Rule and the old Rules of the Supreme Court Order, 10 Rule 1(3)(a) which provided as follows:

"..... the date of service shall, unless the contrary is shown, be deemed to be the 7th day ..... after the date on which the copy was sent to ..... the address in question."

18. He submits that the omission of "unless the contrary is shown" is significant and that this is intended to indicate that the presumption is an absolute one in the new Rules. I see the force of Mr Bowen's submission. However, I cannot think that the "deeming" provision is to be determinative in all cases, even in the face of positive evidence to the contrary. For example Rule 10.3(1) provides as follows :

"10.3-(1) The general rule is that the period for filing an acknowledgement of service is -

(a) Where the defendant is served with a claim form which states the Particulars of Claim are to follow, 14 days after service of the Particulars of Claim ; and

(b) In any other case, 14 days after service of the claim form..."

19. I do not believe for example, that if a claim form is served on a defendant in fact on 7 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 been 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 5 November.

21. For that reason, it appears to me that the Master was right and that this appeal must fail, subject to Mr Bowen's application for an Order dispensing with service at all. However, the point of construction of Rule 6.7 has been fully argued and I ought to state my views upon that issue.

22. The defendant, and the Master both relied upon the express reference in Rule 6.7(1) to Rule 2.8. It is submitted that this shows a clear intention to exclude Saturdays and Sundays from any period for calculating the date of deemed service by post. The claimant submits, however that the bracketed words are not included within Rule 6.7 and Mr Bowen relies in this respect upon a comment made by Mr Justice Johnson in a case entitled Re Casserly Deceased, Barker v. Casserly 23.10.2000, where Mr Justice Johnson said the following :

"The inclusion in these new Rules of statements in brackets are helpful guidance but no more. Indeed the practice direction supplementary to CPR part 8 provides in paragraph 2.1 that :

"(Part 7 and the practice direction which supplements it contain a number or rules and directions applicable to all claims, including those to which part 8 applies.)"

It would have been extraordinary if, as counsel for the third defendants submitted, there was no power for the court to extend the period for service and in this respect the Rules would have been contrary to the claimant's right under the ECHR."

23. That was a case where it was contended that service of a Part 8 claim form had not been made in time. Rule 8.2 dealing with such forms provides :

"Where the claimant uses the Part 8 procedure the claim form must state ... "

24. Then there are prescribed the contents of a Part 8 claim form. After prescribing those contents the following passages appear in separate bracketed sections the following : "(Part 22 provides for the claim form to be verified by a statement of truth.)," "(Rule 7.5 provides for service of the claim form.)," Three"(The costs practice direction sets out the information about a funding arrangement to be provided with the claim form where the claimant intends to seek to recover an additional liability.), ("Funding arrangement" and "additional liability" are defined in Rule 43.2)"

25. Before Mr Justice Johnson it was contended that the express reference to Rule 7.5 excluded the possibility of the application of Rule 7.6 (permitting applications for orders extending time for service) to Part 8 claim forms. Not surprisingly that submission was rejected. However, I do not see that Mr Justice Johnson's comment is meant to imply that, for example, Rule 7.5, which is expressly referred to, did not apply to Part 8(4).

26. In the present case, if the claimant is right the reference to Rule 2.8, far from being "helpful guidance" would be positively unhelpful in referring to any relevant rule, and indeed, would be positively misleading. Reference to Rule 2.8, however does not of itself conclude the matter because that rule provides :

"2.8-(1) This Rule shows how to calculate any period of time for doing any act which is specified -

(a) by these Rules ;

(b) by Practice Direction ; or

(c) by a judgment or order of the court. ....

(4) where the specified period -

(a) is five days or less ; and

(b) includes -

(i) a Saturday or Sunday; or

(ii) a Bank Holiday, Christmas Day or Good Friday that day does not count. ..."

27. The claimant submits that rule 6.7(1) is not a Rule which specifies any period of time for doing an act : the Rule simply provides a fiction of when something is said to be taken as having occurred, without any act having been done at all. Further, Mr Bowen submits, the reference to Rule 2.8 so as to exclude Saturdays and Sundays would be to ignore the rest of Rule 6.7 which make, in various parts, a distinction between "day" and "business day." Mr Bowen submits that, if the Rule was to have the effect contended for by the defendant, it would have been the easiest thing in the world to say that, in the case of service by first class post, service would be deemed to be effected on the second business day after posting. There is obviously force in that point. Comparison must be made, he submits, with deemed service by fax, in the same table under Rule 6.7(1) where the phrase "business day" is used.

28. The drafting is somewhat difficult to unravel. However, while not determinative of the point, as a matter of language, I note that the expression "business day", with regard to both personal service and fax service, is used to deal with a circumstance where it is known that actual receipt was after 5.00 pm and 4.00 pm respectively, and the Rule then artificially postpones the deemed date of service to the next business day. I do not think that the express catering for this type of eventuality in the manner indicated resolves the question of how one construes Rule 6.7(1) with regard to postal service, where the precise time of transmission and receipt are not known.

29. In my view, the clear intention behind the reference to Rule 2.8 in Rule 6.7(1) is to indicate that Saturdays and Sundays etc. should similarly be excluded from calculations of all kinds of deemed service, save those where express provision is otherwise made.

30. For this reason also, therefore, I would hold that, in so far as Rule 6.7(1) applies at all in this case, service should be deemed to have taken place in this case on Tuesday 7 November 2000.

31. Therefore, the appeal would fail on this ground also.

32. That leaves Mr Bowen's application for an Order under CPR Rule 6.9. That Rule reads as follows :

"(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."

33. Mr Bowen's application rests substantially upon a decision of Mr Justice Douglas Brown of 14 June 2001. In that case, a claim form had been erroneously despatched, within time, to an incorrect document exchange address. The result was that it was eventually served at the proper address a few days after the expiry of the relevant four-month time limit. The District Judge extended time for service to that day. The defendant appealed. Mr Justice Douglas Brown allowed that appeal, following the decisions of the Court of Appeal in Vinos v. Marks & Spencer plc 8 June 2000 and Satwinder Kaur/Maria Proctor v. CTP Coil Ltd 10 July 2000, in which it was held that where a claim form had been served outside the prescribed period, it was not possible to invoke the court's general case management powers to get round an impossibility on the part of the claimant to bring the case within the provisions of Rule 7.6(3), which specifies the sole criteria for the jurisdiction to extend time for service of claim forms after the end of the prescribed period.

34. In the Vinos case Lord Justice May with whom Lord Justice Peter Gibson agreed 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 the power to do so otherwise. The discretionary power and the rules to extend time periods - Rule 3.1(2)(a) does not apply because of the introductory words. General words of Rule 3.10 cannot extend to enable the court to do what Rule 7.6(3) specifically forbids nor to extend the time when the specific provision of the Rules which enable extensions of time specifically does not extend to making this extension of time." 35. Lord Justice May continued a little later in the judgment as follows:

"It is unsatisfactory with a personal injury claim to allow almost three 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 which says that, if you leave issuing proceedings to the last moment and then do not comply with this particular time requirement and do not satisfy the conditions in 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."

36. A similar decision was reached in Kaur.

37. In the case before Mr Justice Douglas Brown Infantino v. MacLean the learned judge invoked Rules 6.1 and 6.9 of the CPR and dispensed with service of the claim form. He was referred to another decision of the Court of Appeal in Elmes v. Hygrade Food Products plc (24 June 2001) (a judgment of Lord Justice Simon Brown with which Mr Justice Penry-Davey agreed).

38. In the Elmes case a claim form had been faxed on the last day of the four month period to a defendant's insurers rather than to the defendant itself. The claimant asked the court to invoke Rule 3.10(b) and 6.8 of the Rules by making an order deeming service to have been good by an alternative method, namely by service on the insurers. 39. In that case the District Judge had made the order asked but was reversed by the judge. On appeal, permission having been granted as the case raised an important point of principle, the Court of Appeal dismissed the appeal. The court referred to both Rules 6.8 and 6.9 and Lord Justice Simon Brown said this :

"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 point 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 that I have just expressed in fact accord with the 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 this 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 4 Television Corporation, again before Peter Gibson LJ and May LJ, on 11 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 provisions 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 effect 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."

40. The court was clearly dealing with an application under Rule 6.8 only. However, it seems to me to be clear that the court considered Rule 6.9 to be in pari materia and concluded that there was "no power here in the court to correct this unfortunate mistake." No power must to my mind have meant that there was no power under Rule 6.9 either.

41. It is to be remembered that in Vinos's, case in a passage expressly referred to again in paragraph 22 of Lord Justice Simon Brown's judgment in Kaur, Lord Justice Peter Gibson said this (at paragraph 27 of his judgment) :

"27. 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. The sub code sets out in some detail what the claimant must do if he wants an extension of time and the circumstances in which the court may exercise the discretion conferred on it to extend the time ; Rule 7.6(3). That the circumstances specified in sub paragraphs (a), (b) and (c) of Rule 7.6(3) are the sole relevant conditions for the discretion to be exercisable seems to be made crystal clear by the words "only if." It is plain that the general power in paragraph 3.1(2)(a) to extend time cannot override Rule 7.6 nor, in my judgment could the general power in Rule 3.10 to remedy a failure to comply with a Rule be pressed into service to perform the like function of in effect extending time. Even though Rule 3.10 differs from Rule 3.1(2) in not having wording to the effect of "except where the Rules provide otherwise," that is too slight an indication to make Rule 3.10 override the unambiguous and restrictive conditions of Rule 7.6(3)."

42. With that passage in mind, I remind myself also of the passage from the judgment of Lord Justice May in Vinos to which I have referred above. For my part, I would have thought those judgments precluded an application based upon Rule 6.9 in the present circumstances. However, in the Infantino case, Mr Justice Douglas Brown concluded as follows :

"49. Counsel in Elmes described CPR 6.8 and 6.9 as Rules which both dealt with the exercise of a discretion to deem service to be good. His submissions appeared to rely on the two Rules and from them appeared that "good reason" referred in 6.8(1) also operated in 6.9.

50. That approach appears to have been adopted by Lord Justice Simon Brown in paragraph 13 of his judgment. It is clear that the Court of Appeal was not considering applications and orders under CPR 6.8 and 6.9 because there now was an application under either Rule. ......"

43. With respect I am not sure for my own part that that is strictly correct because it seems to me that an application under CPR 6.8 was very much the matter before the court in the case of Elmes. Mr Justice Douglas Brown continued :

"It does seem from the summary of counsel's argument that the Court of Appeal was not invited to consider 6.9 separately.

51. In my view they should be considered separately. 6.8 replaces the provisions as to substituted service in the Rules of the Supreme Court. 6.9 on the other hand is a new provision giving the court a general power on application to dispense with the service of a document. There was no such general power in the Rules of the Supreme Court or the County Court Rules. The notes at 6.9.1 in the White Book speculate that the most likely use of Rule 6.9 in practice (though not limited to such cases) would be to dispense with re-service. Rule 6.9 must be read together with the Rules as to the overriding objective and thence to its application by the court (Rule 1.1 and 1.2). Rule 1.1(1) provides for ;

"These Rules are a new procedural code with the overriding objective enabling the courts to deal with cases justly."

52. Rule 1.2 provides :

"The court must seek to give effect to the overriding objective when it (a) exercises any power given to it by the Rules."

57. The remarks of Lord Justice Simon Brown, with which Mr Justice Penry-Davey 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. It appears to rule out use of Rule 6.9 for the same reason. The use of Rule 6.9 here is not strictly retrospective. The claimant is entitled to say here, with these factual circumstances in the court's discretion the court should exercise the power to dispense with further service. In all these circumstances I do exercise that discretion and dispense with service. He does lose the 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 and on particulars of claim and defence and no more time should be taken up on procedural wrangling."

44. While I have indicated the extreme difficulties that I see in reconciling this case with either the powerful dicta in Elmes, or with the rationale behind the decisions of the Court of Appeal in Vinos and in Kaur, I must follow the Infantino decision, unless satisfied that it is plainly wrong.

45. Since Mr Justice Douglas Brown's case appears to be the only direct authority on Rule 6.9, I feel duty bound to follow it and to hold that I do have a discretion to dispense with service in this case. However I decline to exercise that discretion. In Infantino, Mr Justice Douglas Brown's decision on the facts was as follows :

"54. In this case the claimant's solicitors in a case which the defendant acknowledged to be extremely complicated provided the fullest detail of the claim, going well beyond the requirements of the clinical negligence pre-action protocol. They twice extended the time for response to assist the defendant and its advising experts. When the response came they obtained an extension of time for service so that their own experts could be consulted and in the result "sent" to the defendant, the same pleading and reports they had since August together with further medical evidence. That they were not received by the defendant in time was due to a clerical error in posting.

55. In these circumstances it must be arguable, even doubtful, whether any claim for professional negligence would succeed against the claimant's solicitors. Apart from using the wrong DX address, they had behaved impeccably. They did leave service to the last day but had to consult doctors and counsel on this difficult case. Had it not been for the time taken Professor MacLean's advisors to reply they would have been served in December.

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 re-service can be dispensed with, so can service in the unusual circumstances of this case."

46. In my view, this case is different. The claim is very old indeed. The claim form was issued on the very edge of the limitation period and the solicitors were well aware of both the time limit for service and that no extension had been consented to by defendant for such service. There is no evidence of compliance with any pre-action protocol and no evidence that the defendants were acquainted with the details of the claim to be made, e.g. the relevant dates and the teacher or teachers against whom complaint is made.

47. Mr Bowen sought to rely on the long history of the matter which led to the appeal in the House of Lords. However, that appeal seems to have turned upon cold issues of law and I have seen nothing to suggest that circumstances exist such as those which persuaded Mr Justice Douglas Brown to exercise his discretion to dispense with service. Indeed no evidence addressing any such points has been adduced before me at all. Mr Bowen urges upon me that no prejudice to the defendant has been shown to arise if service were to be dispensed with. I think that puts the boot on the wrong foot. It seems to me that it is for the applicants to adduce evidence as to why it is said no prejudice arises and then for the respondent to respond to any such evidence that may be adduced. I decline to speculate about relative prejudice in such circumstances, save to say that limitation periods exist to prevent defendants being prejudiced long after the relevant events by having to try to defend stale claims - a point to which Lord Justice May's statement in Vinos is equally applicable.

48. In those circumstances I refuse the claimant's application to dispense with service of the claim form in this case.