Practice

Stoute (a minor by his litigation friend) v LTA Operations Ltd trading as Lawn Tennis Association: Court of Appeal, Civil Division: 15 May 2014

Claimant issuing proceedings against defendant for race discrimination – Court error in serving claim form on defendant contrary to instructions for solicitor service – Claimant’s solicitors informing defendant’s solicitors that service to be treated as ineffective

The claimant, who was aged 18, was a black professional tennis player. He brought a claim contending that he had been discriminated against on the grounds of his race by the defendant governing body for professional tennis in the UK. 

The claimant, through his father, sought to commence proceedings in county court. The father attended the relevant court office and handed in the claim form with a letter from his solicitors stating that: ‘We enclose N1 [that is, the claim form] to issue for solicitor service. Please do not serve it on the defendant in the usual manner but return the claim form to us for service.’ That was a notification to the court under CPR 6.4 (1) (b). Instead of following the claimant’s solicitors’ instructions and returning the claim form to them for solicitor service, the county court money claims centre (the centre) undertook service itself and sent the claim form to the defendant by first-class post on 11 March.

The claimant’s solicitors wrote to the defendant’s solicitors saying that the claim form had been served contrary to their instructions to the court, that it had been referred back to county court and that it would be served within four months of issue by solicitor service. The defendant’s solicitors accordingly treated the service as ineffective. On 14 May, the claimant lodged what purported to be an application under CPR 7.6 for an extension until 14 September of the time for serving the claim form. The district judge granted the application and extended time to 16 November.

The defendant applied for the extension to be set aside. If that application were successful, the result would be that the proceedings would lapse, since it would be too late to serve the claim form within the original four-month limit. On 15 November 2012, the claimant served the claim form (as amended), accompanied by particulars of claim.

In January 2013, the district judge heard the defendant’s application to set aside the order granting the claimant an extension of time for service of the claim form. He held, construing CPR 6.4(1)(b), that the service by the court in March had been effective service, notwithstanding that it was contrary to the claimant’s notification that he wished to effect service himself.

That conclusion meant that the claimant was in breach of his obligation under CPR 7.4 to serve particulars of claim within 14 days of service of the claim form and that amendments made on 14 May 2012 were ineffective since the claim form had already been served. However, the district judge exercised his case management powers and allowed the claim to continue on the basis of the amended claim form. He made an order retrospectively extending the time for service of the particulars of claim to their date of actual service. The defendant appealed.

The judge, allowing the appeal, held that the service by the court in March 2012 was a nullity because it was effected contrary to the claimant’s notification that he wished to effect service himself. The judge dismissed the claim. The claimant appealed against that decision.

The issues for consideration were: (i) whether the service of the claim form by the court, in disregard of the claimant’s notification that he wished to effect service himself, constituted ‘an error of procedure’ within the meaning of CPR 3.10, which the court could rectify; and (ii) whether the district judge had erred in extending time for service of the particulars of claim by failing to follow the approach to relief from sanctions as laid down by CPR 3.9.

The appeal would be allowed.

(1) The service of a claim form by the court, in disregard of a claimant’s notification that he wished to effect service himself could constitute ‘an error of procedure’ within the meaning of CPR 3.10. The language of CPR 3.10 was not confined to errors by a party and the policy considerations which underlay the rule would seem to be the same whether a procedural mistake was the responsibility of the party or the court.

There might be cases of what might, on a literal approach, be describable as ‘errors of procedure’, but which were nevertheless of such a nature that they were evidently irremediable and could not have been intended to fall within the scope of CPR 3.10. However, there was no reason why service in breach of CPR 6.4(1) should be regarded in that way or why it should be inferred that the rule-maker intended that CPR 3.10 should be inapplicable in such a case. There was nothing wrong in principle about service being affected by the court.

However, there would be cases where the error did deprive a claimant of a real advantage, most obviously if he had wanted to defer service for the time being, or perhaps retain the possibility of not proceeding at all. However, the possibility of prejudice of that kind was not a reason for treating premature service by the court as a nullity.

Insofar as the claimant had suffered some tactical prejudice, the damage would have been done whether it was a nullity, so that service had to be effected afresh, or not. Insofar as there was procedural prejudice, that could be addressed by the grant of an appropriate extension see [(36], [37], [40, [55], [56] of the judgment).

Applying settled law, the service of the claim form by the court, in disregard of the claimant’s notification that he wished to effect service himself had constituted ‘an error of procedure’ within the meaning of CPR 3.10. What happened in the instant case fell comfortably within the natural meaning of that phrase. In all the circumstances, the service by the court of the claimant’s claim form in March 2012 had constituted effective service, and the judge had been wrong to hold otherwise (see [36], [44, [55], [56] of the judgment).

Vinos v Marks & Spencer plc [2001] 3 All ER 784 applied; Steele v Mooney [2005] 2 All ER 256 applied; Phillips v Symes (sub nom Phillips v Nussberger) [2008] 2 All ER 537 applied.

(2) It was settled law that, notwithstanding the importance attached in the guideline cases to a systematic approach being taken to the factors identified in CPR 3.9, a decision was not automatically bad in law because those factors had not been individually set out and considered (see [49], [55], [56] of the judgment).

The judge’s reasoning on relief from sanctions had been both full and careful. It was clear that the judge had taken a balanced overall view, paying explicit regard to the overriding objective, about what course was most likely to get the continuing disputes between the parties substantively resolved as quickly and as cheaply as possible.

The district judge had considered all circumstances, including such of the particular CPR 3.9 factors as were relevant in the circumstances of the instant case. The claimant’s failure to serve particulars of claim timeously could not fairly be described as intentional. He had not served them because he had not believed that the claim form had been served.

The district judge had been entitled to take the view that, however unsatisfactory the conduct of the claimant or his solicitors in that respect, it had been outweighed by the reasons for granting permission which he had given (see [48]-[51], [55], [56] of the judgment). The district judge’s order would be restored (see [52], [55], [56] of the judgment).

Price v Price (trading as Poppyland Headware) [2003] 3 All ER 911 considered.

Victoria Webb (instructed through the Bar Pro Bono Unit) for the claimant; Kate Gallafent (instructed by Farrer & Co LLP) for the defendant.