Court’s Retrospective Backdating of Claim Form
6 June 2023
This second appeal to the Court of Appeal is an illustration of the sad state of the system of court administration users are presently suffering: Walton v Pickerings Solicitors & Anor [2023] EWCA Civ 602 Asplin, Nugee and Falk LJJ
The appellant, who wished to issue a claim form, attended the court office on 20 July 2020 and paid the court issue fee of £10,000. He did not receive a sealed claim form from the Court until 7 December 2020, and when he did it was backdated as if it were sealed at the date of 20 July 2020.
W served it on both defendants within a matter of days but as it was valid for service for 4 months from the date of issue it was already out of date.
His application for retrospective extension of time for service was refused by Deputy Master Dray on 28 June 2021 (who accepted that the claim “got lost” in the court system) and again on appeal by Mr Robin Vos (sitting as a Deputy High Court Judge) on 18 August 2022.
W appealed to the Court of Appeal on three grounds. After hearing argument on the first ground, which was that the Court had no power to backdate the claim form and was obliged to seal it with the date on which it was actually issued, the Court notified the parties that it did not need to hear argument on the remaining grounds and allowed the appeal.
Counsel for the appellant, who did not appear below, made a simple submission: that the rules treat the act of sealing the claim form and the issue of the claim form as a single act which takes place at the same time. There was no express power to seal the claim form with a date other than that on which it was in fact sealed. CPR rule 7.2(2) was not to be read as conferring a discretionary power on the Court to enter some different date on the claim form, but as requiring the Court to enter the date when the claim form was in fact issued.
Nugee LJ, giving the judgment of the Court, accepted this submission which seemed to him to be well founded. As appeared from rule 7.2(2) proceedings were not “started” until the Court issued the claim form. On issue the Court must seal the claim form (rule 2.6(1)(a)), and the very purpose of the seal was to indicate that the claim form had been issued by the Court. So until the form was marked with the seal the document had not been issued and the proceedings had not started.
Had the question been asked on 20 July 2020, or on any date between then and 30 November 2020 “Have the proceedings been started?” the only answer that could have been given would have been “No” because the claim form had not yet been sealed and issued.
In the absence of express power in the rules, his Lordship had great difficulty in seeing how the Court by sealing the claim form on 1 December could change the answer to that question. Neither was the rule to be read as impliedly conferring that power. The far simpler reading of the rule was that it directed the Court to enter the date of actual issue.
It had been submitted that there was no evidence why the Court had dated the claim 20 July 2020. As the Court had no power to backdate the issue of the claim form then it did not matter why it did it.
In allowing the appeal the Court declared that the claim form was served in time on both defendants who were given 28 days in which to serve their defence.