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Neutral Citation Number: [2006] EWCA Civ 1372
No: B1/2006/0647

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
HIS HONOUR JUDGE MacMILLAN
5S001513

Royal Courts of Justice
Strand, London, WC2 A 2LL

25th October 2006

 

LORD JUSTICE TUCKEY
LADY JUSTICE ARDEN
and
LORD JUSTICE LLOYD

 

 

ST. HELENS METROPOLITAN BOROUGH COUNCIL
Appellant

- and -

BARNES
Respondent

 

John NORMAN (instructed by Messrs Weightmans) for the Appellant
Andrew WILLINS (instructed by Maxwell Hodge) for the Respondent
Hearing date: 10th October 2006

HTML VERSION OF JUDGMENT
Crown Copyright ©
  
   Lord Justice Tuckey :
1.   Section 11 of the Limitation Act 1980Acts provides that "(3) An action [for personal injuries] shall not be brought after the expiration of … (4) three years from the date on which the cause of action accrued". Paragraph 5 of the Practice Directionpdp-07supplementing CPR Part 7 says that:
  
 5.1   Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is "brought" for the purposes of the Limitation Act 1980Acts and any other relevant statutes on that earlier date.
 5.2   The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.
 5.3   An enquiry as to the date on which the claim form was received by the court should be directed to a court officer.
 5.4   Parties proposing to start a claim which is approaching the expiry of the limitation period should recognise the potential importance of establishing the date the claim form was received by the court and should themselves make arrangements to record the date.
2.   The question which arises on this appeal is whether paragraph 5.1 is correct. It arises on appeal from a judgment of His Honour Judge MacMillan given in the Liverpool County Court who decided that it was. The point is of importance because it relates not just to personal injury claims but to all claims the subject of Part 1 of the 1980 Act which in each case cannot be "brought after the expiration" of the applicable time limit.
3.   The facts relevant to what we have to decide can be shortly stated. The claimant alleges that he has suffered personal injury, loss and damage as a result of the defendant local education authority's negligence and breach of statutory duty in the way in which he was educated. The three year primary limitation period starting on his 18th birthday expired on 5 November 2004.
4.   On Thursday 4 November the Legal Services Commission extended public funding to enable the claimant's solicitor to start proceedings on his behalf. The solicitor attended the offices of the Liverpool County Court that day with a letter which said:
  
  
    Re: William Barnes v St Helens Metropolitan Borough Council
    We enclose for issue:
   
 1   Claim form in triplicate;
 2   Cheque for the court fee in the sum of £400.
    Please issue the claim and return to us two sealed copies – one for service. We will affect service of the claim form.
   The solicitor handed this letter and its contents to a clerk. The clerk date stamped the solicitor's copy of the letter with the court's official stamp to record the fact that the letter and its enclosures had been received on 4 November. On 5 November the court offices were open but a number of its staff were taking industrial action. When the solicitor phoned the court that day he was told that there was nobody working in the new issue section but they would be back to work on Monday. So it was that the claim form was not issued and dated until Monday 8 November.

5.   CPR 7.2 is headed "How to start proceedings" and provides:
  
 7.2 (1)   Proceedings are started when the court issues a claim form at the request of the claimant.
 (2)   A claim form is issued on the date entered on the form by the court.
   So the proceedings were not "started" for the purpose of the rules until 8 November, three days after the primary limitation period had expired. However if the Practice Direction is correct they would have been brought in time because the claim form was received by the court on 4 November.
6.   The judge thought there was no difference between the verbs "to bring" and "to start". However he accepted a submission that rule 7.2 was ambiguous and went on to resolve the ambiguity by reference to the Practice Direction. His conclusion that the claim had been brought within the three year primary limitation period meant that he did not have to consider whether that time limit should be disapplied under the provisions of Section 33 of the 1980 Act.
7.   The question for us is when is a claim "brought" for the purpose of the 1980 Act under the procedural regime introduced by the CPR? Is it on the date which appears on the claim form when the court issues it and the proceedings are started as provided by rule 7.2, or is it when the court receives the request to issue it? I think the meaning of rule 7.2 is clear: proceedings start on the date entered on the claim form by the court which is their date of issue. The question is whether this is also the time when the claim is brought as Mr Norman for the defendant contends.
8.   Surprisingly there is no authority directly on point. But we were referred to two pre-CPR authorities, and two post CPR authorities dealing with different statutory time limits and I shall consider these cases first.
9.   In Pritam Kaur v S. Russell & Sons Ltd [1973] QB 336 this court decided that if a statutory limitation period expired on a day when the court offices were closed it should be extended to the next day on which they were open. At p. 349 Lord Denning said that the arguments were so evenly balanced that the court could come down either way. He summarised them as follows:
  
   The defendants can say: "The plaintiff has three years in which to bring his action. If the last day is a Saturday or Sunday, or other dies non, he ought not to leave it until the last day. He ought to make sure and issue it the day before when the offices are open".
    The plaintiff can say: "The statute gives me three years in which I can bring my action. If I go into the offices on the last day, and find them closed, I ought not to be defeated on that account. I should be allowed to go next day when the offices are open. Otherwise I should be deprived of the three years which the statute allows me".
   The court accepted the argument for the plaintiff. Mr Norman relies on the fact that Lord Denning said that there was no difference between the words "shall not be brought after" in the applicable Limitation Act and the words "shall be commenced within" in the Fatal Accident Acts, but this point was not argued and I do not think it gets him very far.

10.   The other pre-CPR case is Riniker v University College London (unreported CA 31 March 1999). In that case the writ office of the High Court unjustifiably rejected a writ which the plaintiff asked to be issued and did not issue it until the limitation period had expired. The court held that it had inherent jurisdiction to direct that the writ should be treated as if it had been issued on the date when it should have been issued. At the end of his judgment Evans L.J. said that what is now paragraph 5.1 of the Practice Direction would produce the same sensible result under the CPR.
11.   Post CPR in Van Aken v Camden London Borough Council [2002] EWCA Civ 1724(Bailii) this court had to consider Section 204 (2) of the Housing Act 1996Acts which says that an appeal to the County Court from a housing authority's Part VII review decision "must be brought within 21 days" of notification of the decision. The appellant's solicitor had delivered the appellant's notice to the court after the office had closed on the last day. As this was an appeal to which CPR 52 applied the appellant was required to file his notice at the appeal court within the statutory time limit. This meant "delivering it by post or otherwise to the court office" (CPR 2.3 (1)). The court held that the notice was in time. Its mere delivery was sufficient to constitute filing without any additional requirement that there should be someone at the court to receive or authenticate it. Delivery to an office involved a unilateral rather than a transactional act.
12.   The other post CPR case is Salford City Council v Garner [2004] EWCA Civ 364in which the court had to consider when proceedings were "begun" for the purposes of the statutory provisions in Part V of the Housing Act 1996Acts dealing with introductory tenancies. The court held that proceedings were begun when they were started as provided by CPR 7.2. Issue of a claim form by the court was a transactional act. The proceedings were not begun on the day when the claim form was delivered to the court because this would cause difficulties: the tenant was entitled to rely on the date appearing on the claim form as the date when the proceedings had begun and should not have to enquire of the court office whether it had been received on some earlier date. Counsel for the housing authority had relied by analogy on paragraph 5.1 of the Practice Direction. Maurice Kay L.J at para. 35 said:
  
   In my judgment there is no such analogy. That specific provision is, as my Lord has demonstrated, based on earlier authority [Pritam Kaur] decided in the context of the bringing of proceedings for the purposes of the Limitation Act. Here the language in issue is not the "bringing of proceedings" but the "beginning of proceedings". Where there is a general provision aimed at a point of time at which proceedings are started it follows that the assimilation of when proceedings are begun and when they are started is conclusive. The extended meaning, given specifically in the context of the bringing of the proceedings for the purposes of the Limitation Act, has no bearing on the present circumstances.
   The assimilation of the time when proceedings are begun with the time when they are started is obvious.

13.   Mr Willins for the claimant referred us to the County Court Rules 1936 which were in force when the 1980 Act was passed and the 1981 Rules which were introduced shortly afterwards. Although these rules refer to proceedings being "brought" I do not think they help to answer the question we have to decide. Both counsel said these rules supported their arguments but I do not think they really help either party.
14.   Mr Norman submitted that it had always been understood that for limitation purposes proceedings were brought at the time when the procedural rules said they had started. The two pre-CPR cases to which I have referred show that he is wrong about this. By one means (Pritam Kaur) or another (Riniker) the courts have given claimants the full period for bringing proceedings afforded by the Limitation Acts. Provided the claimant takes any necessary step required to enable the proceedings to be started he does not take the risk that, for example, the court may be closed or will not process his claim properly. It seems to me that paragraph 5.1 of the Practice Direction reflects this understanding. It was issued in 1999 and has remained unchallenged until now. Nothing was said to undermine it in the two post CPR cases to which I have referred. As a Practice Direction it cannot contradict the rules, but I do not see that it does so. It is however a valuable aid to the construction of the 1980 Act in the context of the CPR.
15.   So I turn to that issue. Mr Norman's submissions are simple. There should be no doubt about whether a claim has been brought in time. It is brought when the claim is started - on a date therefore which appears on the face of the claim form. The difference between the words "action brought" in the 1980 Act and "proceedings started" in the CPR is not one of substance. Until an action has started there are no proceedings brought or otherwise, and it does not start until the court has formally recorded that fact. The claimant should take the risk that the court may delay issuing the claim. There is nothing unjust about this because the limitation periods are generous, in an appropriate case the Riniker remedy may be invoked and the claimant may still be saved by section 33. On the other hand the date on which the court receives the request to issue the claim form may not be ascertainable with certainty and it is not the time at which the claim is brought because the form itself may be defective and some transactional act by the court is required before it can be processed for issue.
16.   I start simply by looking at the words used in the statute and the rules. I approach them by expecting to find the expiry of a limitation period fixed by reference to something which the claimant has to do, rather than something which someone else such as the court has to do. The time at which a claimant "brings" his claim form to the court with a request that it be issued is something he has to do; the time at which his request is complied with is not because it is done by the court and is something over which he has no real control. Put another way one act is unilateral and the other is transactional. Looked at in this way I do not agree with the judge or Mr Norman that in this context the verb "to bring" has the same meaning as the verb "to start". The 1980 Act can perfectly properly be construed so that in the context of the CPR a claim is brought when the claimant's request for the issue of a claim form (together with the court fee) is delivered to the court office. Paragraph 5 of the Practice Direction gives sensible guidance to ensure that the actual date of delivery is readily ascertainable by recording the date of receipt.
17.   This construction accords with the approach taken in the pre CPR cases. The claimant is given the full period of limitation in which to bring the claim and does not take the risk that the court will fail to process it in time. Mr Norman had to concede that his argument meant that if there was a three month strike or the court offices were closed for some other unforeseen reason for a long time, the claimant would take the risk that his claim would become statute barred because it had not been started in time in accordance with rule 7.2. This would be unjust. Resort to the inherent jurisdiction as in Riniker would not I think provide an adequate or satisfactory remedy, not least because the County Court does not have the inherent jurisdiction invoked in that case. Nor does section 33 provide an answer because it only applies to claims for personal injuries and not to other types of claim where the periods of limitation are absolute.
18.   The date of issue of the claim form fixes the time within which the proceedings have to be served (rules 7.5 and 7.6). A defendant can see from the claim form whether or not he has been served in time. He will not be able to see when the request to issue the claim form was received by the court, but if the date of issue is outside the limitation period this will be apparent and the Practice Direction (paras. 5.2 – 5.4) is designed to ensure that anyone enquiring will be able to discover the date of receipt. There is a measure of uncertainty about this but not in my judgment sufficient to warrant a different construction of the statute.
19.   I do not see that receipt of the claim form by the court office involves any transactional act. The court staff who receive the documents are not performing any judicial function and have no power to reject them. Mr Norman puts the extreme example of a form which does not name the parties or one which does not include a claim. If such forms were rejected, I suspect that the answer would be that the claimant had not delivered anything which could properly be described as a claim form.
20.   So for these reasons I reject Mr Norman's submissions. I think the Practice Direction is correct and the judge was right so to hold. This conclusion makes it unnecessary for me to consider the alternative ways in which Mr Willins put his case based on the Human Rights Act and Riniker. I do not think that the Human Rights Act adds anything to the debate and as Lord Justice Evans said the Riniker remedy is now achieved by paragraph 5 of the Practice Direction. What I have said however is confined to the situation contemplated by the Practice Direction, that is to say receipt by the court office of the claim form. This necessarily involves actual delivery by whatever means permitted by the rules to the correct court office during the hours in which that office is open (CPR 2 PD paras. 2 and 3). That is what happened in this case. Different considerations might apply if delivery was made to the wrong place or outside office hours. They will have to be considered if they arise.
21.   I would dismiss this appeal.
   Lady Justice Arden: I agree
   Lord Justice Lloyd: I also agree.