Stoute v LTA Operations Ltd

A court’s service of a claim form contrary to a claimant’s notification that the claimant wishes to serve it is an error of procedure, not an automatic nullity. Rule 3.10 of the Civil Procedure Rules applies to errors by the court as well as by parties. The service remains effective unless the court orders otherwise under rule 3.10(a).

Rule 3.10 cannot be used to evade the strict requirements for extending time where service was not effected. It may, however, establish that defective service was effective. An extension of time for particulars of claim under the former rule 3.9 required consideration of all relevant circumstances, but did not require a mechanical consideration of every listed factor.

The claimant, a professional tennis player who was then a minor, brought County Court proceedings alleging racial discrimination by the governing body for professional tennis. His solicitors asked the court to return the issued claim form for solicitor service. The court instead served it by post in March 2012.

Both parties initially treated that service as ineffective. District Judge Avent later held that it was effective and extended retrospectively the time for serving particulars of claim. On the respondent’s appeal, HHJ Mitchell held that the service was a nullity and dismissed the claim.

The claimant appealed. The central issues were whether the court’s service was effective despite the claimant’s notification under rule 6.4(1)(b), and whether the District Judge had lawfully extended time for service of the particulars of claim.

Appeal allowed unanimously. Underhill LJ gave the judgment, with which Tomlinson LJ and Rimer LJ agreed. The order of District Judge Avent was restored.

1. The preferable starting point was rule 3.10 of the Civil Procedure Rules, rather than whether rule 6.4(1) was mandatory or directory. The court’s service of the claim form despite the claimant’s notification that he wished to serve it was an error of procedure within rule 3.10. The rule applied equally to procedural errors made by the court. Its broad, common-sense scope was supported by Steele v Mooney [2005] 1 WLR 2819 and Phillips v Symes (No 3) [2008] UKHL 1.

2. That error did not make the service a nullity. Service by the court was the primary method contemplated by the Rules, brought the claim formally to the respondent’s attention, and caused no inherent unfairness. Any procedural prejudice to a claimant, including lack of readiness to serve particulars, could be addressed by an appropriate extension. The court therefore held that the March 2012 service was effective.

3. Rule 3.10 could not be used as a backdoor means of obtaining an extension unavailable under rule 7.6, as illustrated by Vinos v Marks & Spencer Plc [2001] 3 All ER 784 and Totty v Snowden [2001] EWCA Civ 1415. That principle did not apply here, because rule 3.10 was relied on to establish that service had occurred within time, albeit irregularly.

4. The court declined to invalidate the service under rule 3.10(a). Although the claimant’s former solicitors had wrongly maintained that service was ineffective, the original error was the court’s and the procedural issue was not straightforward. Invalidating service would also conflict with the District Judge’s permissible assessment that the proceedings should continue.

5. The District Judge’s retrospective extension for service of the particulars of claim was a lawful exercise of discretion under the former rule 3.9. He had considered all relevant circumstances and was not required to address every listed factor separately. The claimant’s failure was not properly characterised as intentional, since he believed the claim form had not been served. The District Judge was entitled to find that the parties’ shared mistake, absence of surprise, and the overriding objective outweighed the unsatisfactory conduct which had caused delay.

The matter was to return to District Judge Avent for determination of costs and case-management directions. The decision expressed no view on the merits of the discrimination claim.

• Court of Appeal (Civil Division): Allowed the claimant’s appeal and restored District Judge Avent’s order: [2014] EWCA Civ 657.
• Central London County Court (HHJ Mitchell): Allowed the respondent’s appeal, held that the court’s March 2012 service was a nullity, and dismissed the claim.
• Central London County Court (District Judge Avent): Held that the court’s service was effective despite the claimant’s request for solicitor service. He extended retrospectively the time for service of the particulars of claim and made case-management orders allowing the claim to proceed.