Steele v Mooney & Ors

An error of procedure within rule 3.10 of the Civil Procedure Rules 1998 includes a drafting error in a procedural application. The expression should receive a broad, common-sense construction, subject to the court’s discretion and the overriding objective.

Rule 3.10 cannot circumvent a specific prohibition elsewhere in the Rules. It may, however, correct a timely application for an extension of time which objectively sought an extension for service of the claim form but mistakenly named the closely related particulars of claim. That is different from failing to make any timely application. Under rule 7.6(2), the strength of the reason for delayed service is material. Awaiting expert evidence needed to establish whether a viable claim exists may justify an extension.

The claimant brought a clinical-negligence claim shortly before expiry of the limitation period. The claim form was not served within the four-month period under rule 7.5(2) of the Civil Procedure Rules 1998.

Before that period expired, her solicitors applied twice for extensions. Through a drafting mistake, the applications and resultant orders referred only to service of the particulars of claim and supporting documents, although the surrounding circumstances showed that an extension for service of the claim form was intended. After discovering the error, the claimant sought rectification under rule 3.10.

Deputy District Judge Smith rectified the orders. On the defendants’ appeal, Judge Rudd held that the drafting mistake was not a procedural error and allowed the appeal. The central issue before the Court of Appeal was whether rule 3.10 could correct the defective timely applications without impermissibly evading rule 7.6.

1. Appeal allowed. The court restored Deputy District Judge Smith’s order rectifying the earlier extension orders under rule 3.10 of the Civil Procedure Rules 1998.

2. In the judgment of the court, Dyson LJ held that an error of procedure is not confined to a failure to comply with a rule or practice direction. A mistaken drafting of a procedural application is itself capable of being a procedural error. A broad, common-sense construction avoids artificial and uncertain classifications, while the discretion under rule 3.10 and the overriding objective protect the opposing party from injustice.

3. The court reaffirmed the limit recognised in Vinos v Marks and Spencer plc [2000] 3 All ER 784: rule 3.10 cannot achieve what a specific rule prohibits. But this was not a case in which the claimant had made no timely application to extend time for service of the claim form. Objectively assessed from the applications and their context, she had made timely extension applications which mistakenly identified the particulars of claim rather than the closely related claim form. Correcting that error did not circumvent rule 7.6(3).

4. Elmes v Hygrade Food Products [2001] EWCA Civ 121 did not require a different result. There, no timely application for alternative service had been made. Here, there were timeous, though erroneous, applications capable of correction.

5. Applying the guidance in Hashtroodi v Hancock [2004] EWCA Civ 652, the court held that the extensions should have been granted under rule 7.6(2) if correctly sought. The claimant reasonably awaited expert evidence and medical records needed to determine whether a viable claim lay against any of the proposed defendants. The outstanding information went to the viability of the claim, not merely to quantification.

6. Neither rule 7.6(2) nor rule 7.6(3) precluded relief. The district judge’s discretionary decision was unchallenged once jurisdiction was established. Judge Rudd’s order was set aside, with consequential costs orders.

• Court of Appeal (Civil Division) — Allowed the claimant’s appeal and restored Deputy District Judge Smith’s order rectifying the extension orders under rule 3.10: [2005] EWCA Civ 96.
• Southampton County Court, Judge Rudd — On 7 April 2004, allowed the defendants’ appeal, holding that the solicitors’ drafting mistake was not an error of procedure within rule 3.10.
• Southampton County Court, Deputy District Judge Smith — On 15 March 2004, rectified the two orders so that they extended time for service of the claim form as well as the other documents.