Just get to the court on time! Barnes v St Helens Metropolitan Borough Council [2006] EWCA Civ 1372

Most claimant practitioners have, at one time or another, courted danger by filing the claim form at or near to the expiry of the limitation period. It may be that they were only instructed to do so by their client at the eleventh hour or that the date of the initial accident had been wrongly entered on their own file. Whatever the reason, ensuring that the claim is brought in time can sometimes lead to mad dashes to the local court, cap, form and cheque in hand. Often the claim will then be issued on the same day. But what if, after all that effort, the court simply fails to issue until the following week?  Will the defendant have the windfall of a limitation defence? Just such a scenario existed in Barnes v St Helens Metropolitan Borough Council [2006] EWCA Civ 1372, where the Court of Appeal ruled decisively in favour of the last-minute claimant.

Background

Section 11(3) and (4) of the Limitation Act 1980 (“the LA 1980”) provide that an action for personal injury “shall not be brought after the expiration of…three years from the date on which the cause of action accrued.”

CPR 7.2(1) and (2) deals with how to start proceedings. This provides that: -

(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”

Paragraph 5 of the Practice Direction supplementing CPR Part 7 says, amongst other things, 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 1980…on that earlier date.

The key issue that fell to be decided in Barnes was whether paragraph 5.1 of the Practice Direction was the correct statement of the law, or whether the claim would be “brought” for the purposes of the LA 1980 only on the date of issue.

Previous case law

The Court of Appeal considered four authorities dealing with statutory time limits. The first was the well-known case of Pritam Kaur v S.Russel & Sons Limited [1973] QB 336, where the Court of Appeal 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. Lord Denning, giving the leading judgment, favoured the right of the claimant to make full use of all the time allowed by statute.

Another pre-CPR case considered was the case of Riniker v University College London (unreported, 31 March 1999), where the writ office of the High Court had unjustifiably rejected a writ which the claimant had asked to be issued. This meant that it was not issued until after the limitation period had expired. Finding for the claimant, the Court of Appeal held that it had an inherent jurisdiction to deem that a claim had been issued on the day it should have been issued by the court.

Two post-CPR authorities were also examined by the Court of Appeal. The most relevant was Van Aken v Camden London Borough Council [2002] EWCA Civ 1724, which related to a limiting provision of the Housing Act 1996 similar in wording to those under the LA 1980. The Court of Appeal held that mere delivery of the relevant notice under that Act was sufficient to constitute filing, without any additional requirement that someone at the court should receive or authenticate it.

Decision

The weight of the authorities clearly favoured claimants being allowed the full period for bringing proceedings afforded by the Limitation Acts. The Court of Appeal therefore rejected the contention that the date of issue should determine when a claim had been “brought”. It had been argued on behalf of the Defendant that this must be the correct construction because it would give certainty to proceedings; the issue date always being ascertainable, where the date of receipt may not be. However, Tuckey L.J, giving the leading judgment, considered that it would be unjust to effectively strike out a claim when the correct documents had been delivered in time. A claimant could then be deprived of a claim by inefficient court practice rather than any failing on his/her part. Furthermore, it would be possible for a defendant to make enquiries to discover the date of receipt if the issue date is outside of the limitation period. Any uncertainly arising would not therefore be sufficient to warrant a different construction of the statute. On this basis, he held that paragraph 5.1 of the Practice Direction should be considered the correct statement of the law.

Consequences

In the light of this judgment, claimants’ representatives can be reassured that, when all else fails, a dash to court on the day limitation expires should still save the claim. To avoid any dispute over date of receipt, however, they must ensure that whoever receives the claim form stamps it immediately. If their nerves are stronger, and the documents are trusted to the postman, they should be sent by registered post. There is always the risk, nonetheless, that the delivery will be made to the wrong address or outside office hours. In these circumstances, there is no guarantee that the court will be so sympathetic because the claimant will not have fulfilled his/her part of the bargain; getting the claim to court on time.

LIONEL STRIDE