Steele v Mooney & Ors

The Court of Appeal holds that CPR 3.10 is to be given a broad and practical application so as to permit the court to correct procedural drafting errors (including where an application mistakenly names the wrong but closely related procedural step), but that the rule cannot be used to achieve what a specific rule expressly prohibits. Where an erroneous procedural application was in substance an application made within the prescribed period, correction under CPR 3.10 is permissible; where nothing was made within the period, CPR 3.10 cannot be used to circumvent specific prohibitions elsewhere in the rules.

The appellant sought correction of two court orders which extended time for service of the particulars of claim but omitted to refer to the claim form. The orders had been made following applications within the period for service prescribed by CPR 7.5. The defendants successfully appealed in the county court on the basis that the omission was merely a drafting error and not a procedural error within CPR 3.10; the claimant appealed to the Court of Appeal. The central issue was whether CPR 3.10 could be invoked to correct such an error and, if so, whether that would conflict with the specific limits on extension of time for service contained in CPR 7.6(2)–(3). The Court considered prior authorities including Vinos v Marks & Spencer plc and Hashtroodi v Hancock, and framed the legal question as whether the defect was (a) an erroneous application made within the prescribed period or (b) the failure to make an application at all within that period.

Disposition: Appeal allowed; the order of Deputy District Judge Smith amending the earlier orders is to stand. The Court of Appeal concluded that the judge had jurisdiction under CPR 3.10 to rectify the drafting errors and that neither CPR 7.6(2) nor CPR 7.6(3) precluded that relief on the facts.

1. (1) Scope of CPR 3.10: The phrase "error of procedure" is to be given a broad, common‑sense meaning. It includes failures to comply with a rule or practice direction and includes mistakes made in taking procedural steps that are otherwise permitted by the rules (para 18–23). A party who applies for one procedural step when he intended another (for example requesting an extension for particulars instead of the claim form) has made a procedural error which CPR 3.10 can remedy (para 20).
2. (2) Limitations on the rule: The court reaffirmed the principle in Vinos v Marks & Spencer plc that the general power in CPR 3.10 cannot be used to do what a specific rule expressly forbids. A narrow construction of "error of procedure" is unnecessary because the court's discretion under CPR 3.10 must be exercised in accordance with the overriding objective and against the backdrop of fairness to the parties (para 21–24, 29–30).
3. (3) Distinction critical to application of Vinos: The court distinguished between (a) making an application which contains an error (capable of correction under CPR 3.10) and (b) erroneously not making an application at all within the prescribed period (a Vinos case where CPR 3.10 cannot be used to circumvent a prohibition) (para 27–28).
4. (4) Application to the present facts: The earlier applications made on 13 August and 10 December 2003 were objectively intended to extend time for service of the claim form but mistakenly referred to the particulars. Those applications were made within the period prescribed by CPR 7.5 and so fell into category (a). Correcting them under CPR 3.10 did not breach the Vinos principle because the correction did not produce what CPR 7.6(3) expressly prohibits (para 26–29).
5. (5) On whether the extensions should have been granted: Applying the guidance in Hashtroodi v Hancock, the court held that the claimant had a good reason for not serving the claim form within the prescribed period because expert reports and relevant records were awaited; consequently the extensions would have been granted had the applications correctly referred to the claim form (para 31–34).
6. (6) Effect of Elmes: The court explained that Elmes v Hygrade Food Products does not assist the defendant because Elmes involved no timeous (albeit erroneous) application capable of correction; Elmes therefore does not displace the reasoning here (para 29–30).
7. (7) Order and costs: The appeal is allowed. The order of Deputy District Judge Smith stands. The costs order of Judge Rudd is varied so that the defendant pays the claimant's costs of the appeal before Judge Rudd and those costs are to be set off against the costs payable under Deputy District Judge Smith's order; the defendants are ordered to pay the claimant's total costs (less set off) in the sum of £5,500 (formal operative paragraph).

• Southampton County Court (Deputy District Judge Smith) – made orders (15 Aug 2003 and 15 Dec 2003) extending time for service of particulars (later amended by order of 15 March 2004) (as recited in the appeal).
• His Honour Judge Rudd (County Court appeal) – allowed defendants' appeal on 7 April 2004, holding the omission was a drafting error not a procedural error under CPR 3.10.
• Court of Appeal (Dyson LJ, with May and Tuckey LJJ) – allowed the claimant's appeal, restored the Deputy District Judge Smith order (8 Feb 2005).