Stoute v LTA Operations Ltd

The Court of Appeal allowed the appellant's procedural appeal and restored the orders of DJ Avent which enabled the discrimination claim to proceed. The court held that rule 3.10 of the Civil Procedure Rules, which permits the court to remedy an "error of procedure", applies to procedural errors by court staff as well as parties. Service of the claim form by the court contrary to the claimant's notification under CPR 6.4(1)(b) was an "error of procedure" but did not automatically invalidate service; accordingly the service effected in March 2012 was effective. The judge below (Judge Mitchell) was wrong to treat that service as a nullity. DJ Avent's exercise of discretion to manage the case and to extend time for serving particulars of claim was within the scope of the overriding objective and was not vitiated by failure to apply the rule 3.9 factors in express detail. The appellate decision was narrowly procedural and expressed no view on the substantive merits of the discrimination claim.

Background and parties:

• The claimant (now 18) is a professional black tennis player who alleged race discrimination by the respondent, the Lawn Tennis Association (LTA). Earlier proceedings were settled in 2009. New proceedings were commenced on 10 February 2012 at the Central London County Court (file stamped on receipt) and subsequently issued by the Salford Business Centre on 8 March 2012 as claim number 2IR74042.

Procedural history and core facts:

• The claimant, through his solicitors Whimsters, had asked the court that the issued claim form be returned to solicitors for "solicitor service" (a notification under CPR 6.4(1)(b)). Despite that instruction the Salford Business Centre sent the claim form to the defendant by first-class post on 11 March 2012 (deemed served 13 March). The parties and their solicitors thereafter proceeded on the common assumption that the claim form had not been served by the court. Confusion about issue dates, attempts to amend the issue date, an application for extension under CPR 7.6 and the court's temporary loss of the file followed. DJ Avent concluded on the papers that the court's service in March had been effective and, in view of the parties' mutual mistake and the overriding objective, made retrospective case-management orders including an extension for service of particulars. The respondent appealed to Judge Mitchell who held the March service to be a nullity and dismissed the claim for want of timely service; permission to appeal to the Court of Appeal was granted by Vos LJ.

Nature of the application and issues before the Court of Appeal:

• (i) The appeal was purely procedural: whether service of the claim form by the court in March 2012, contrary to a CPR 6.4(1)(b) notification, was effective; and (ii) whether DJ Avent was entitled to exercise his case-management powers and grant retrospective relief (including extension for particulars) in the circumstances.

Court's reasoning and decision:

• The court began by asking whether CPR 3.10 applied. It held that a broad, common-sense approach should be taken and that rule 3.10 (the court's general power to rectify errors of procedure) does apply to errors by court staff as well as by parties. The March service was an "error of procedure" within the meaning of rule 3.10 but not inevitably an irremediable nullity. There was no principled reason to treat service by the court in breach of CPR 6.4(1)(b) as automatically void; the essential purpose of service (to bring the claim to the defendant's attention) had been achieved and any tactical or procedural prejudice could be addressed by appropriate case-management relief.
• The court rejected the respondent's contention that rule 3.10 could not be used as a "backdoor" where rule 7.6 governed extension of time, observing that the present reliance on rule 3.10 was to establish that effective service had in fact occurred. The court also found no overriding objection of uncertainty such as to justify treating the March service as null.
• On the discretionary question of relief, the court upheld DJ Avent's case-management approach. Although rule 3.9 factors are relevant to applications for relief from sanctions, a judge is not automatically in error if the factors are not catalogued individually; DJ Avent had considered the circumstances and taken a proportionate view under the overriding objective. The Court of Appeal therefore restored DJ Avent's order and permitted the claim to proceed; it expressed no view on the substantive merits.

Appeal allowed. The Court of Appeal held that CPR 3.10 applies to procedural errors made by the court and that service of the claim form by the court contrary to a CPR 6.4(1)(b) notification was an "error of procedure" which did not automatically invalidate the service. DJ Avent's exercise of discretion, including retrospective case-management relief to permit the particulars of claim to stand, was lawful and consistent with the overriding objective. The order of Judge Mitchell was set aside and DJ Avent's orders restored.

Proceedings began at Central London County Court (claim form lodged 10 February 2012, issued 8 March 2012, claim no. 2IR74042). On an application about service and extensions DJ Avent made orders (written judgment promulgated 6 February 2013) allowing retrospective relief; the respondent appealed to HH Judge Mitchell who allowed the appeal and treated the March service as a nullity (judgment 9 July 2013; formal order 23 August 2013). Permission to appeal to the Court of Appeal was granted by Vos LJ. This Court (EWCA Civ) delivered judgment allowing the appeal on 15 May 2014 [2014] EWCA Civ 657 and restored DJ Avent's orders.