Zehour Chelfat v Hutchinson 3G UK Limited

The failure to file Practice Form N510 (service out of the jurisdiction) prevents formal service but does not authorise court officers to refuse to issue a claim form; a claim form delivered to court within the limitation period remains capable of being treated as the date the action was brought for limitation purposes even if issued later, provided the claimant has done all that she reasonably could to bring the matter before the court.

The appellant, a litigant in person, attempted to issue proceedings in December 2015 but the County Court Money Claims Centre (CCMCC) did not issue the claim form and cited three reasons including the absence of Form N510. Two of those reasons were subsequently found incorrect, leaving the failure to file Form N510 as the only asserted ground for non-issue. The appellant only became aware of the CCMCC's position in August 2016 and reissued proceedings in December 2016; those proceedings were struck out as statute-barred. On appeal through the County Court and then to the Court of Appeal, the central questions were (1) whether r.6.34 CPR permitted the CCMCC to refuse to issue a properly drafted claim form for want of N510, and (2) whether the claim was "brought" on the date the court office first received the claim form for limitation purposes. The Court of Appeal allowed permission on limited grounds and considered whether the appellant had a real prospect of showing the action was brought on or about 11 December 2015.

Held (majority: Coulson LJ, Stuart-Smith LJ, Peter Jackson LJ)

1. Disposition: The CCMCC was not entitled to refuse to issue the appellant's claim form on account of the absence of Form N510; it was arguable that the action was brought on or about 11 December 2015 and the striking-out order should be set aside and remitted for further consideration.
2. Construction of CPR 6.34: Rule 6.34 imposes two obligations: file Form N510 with the claim form and serve a copy with the claim form. The express sanction in r.6.34(2) is that the claim form may not be served until the notice is filed or the court gives permission; the rule does not mention or authorise non-issue of a claim form. It follows that a court officer or court centre is not entitled, as a matter of proper construction of r.6.34, to refuse to issue a properly constituted claim form on the ground that N510 was not filed ([38]–[43], [47]–[49]).
3. Role and limits of court officers: While court staff must carry out a degree of scrutiny, they have no general power to reject otherwise proper claim forms; refusal to issue should be reserved for exceptional circumstances far beyond the facts of this case ([45]–[47]).
4. Purpose of Form N510: The N510 notice relates to service out of the jurisdiction: it operates as a procedural filter and prevents service without compliance; it does not determine whether the claim form may be issued ([21], [22], [39]–[41]).
5. Limitation: when an action is brought: The authorities and Practice Direction 7A(5.1) establish that where a claim form as issued was received in the court office on an earlier date, the action is "brought" for limitation purposes on that earlier date, provided the claimant has done all that she reasonably could to cause the court to issue the proceedings. On the working assumption that the 2015 and 2016 claim forms were substantively identical except for the address for service, the Court concluded that the claim form received in December 2015 can properly be treated as the claim form as issued for limitation purposes ([25]–[29], [51]–[56]).
6. Application to the facts: The CCMCC's letter of 17 December 2015 wrongly cited r.6.34 as justifying non-issue; two other grounds in the letter were also incorrect. The appellant had done what she reasonably could (delivered the papers; would have completed N510 if asked) and there was no realistic prospect of her doing more to have the 2015 request processed ([7], [11], [48], [58]–[60]).
7. Remedies and practical result: On the arguability standard applicable to a struck-out claim, it is arguable that the action was brought in December 2015. Accordingly the order striking out the claim should be set aside and the matter remitted to the County Court for further directions and determination as to substantive issues that remain factual ([66], [56]). The court emphasised that the decision rests on the particular facts and on established limitation principles, not on permitting procedural shortcuts.

• County Court at Central London: His Honour Judge Roberts C40YP715 — appeal from District Judge Avent; appeal dismissed (note of judgment dated 22 August 2019) (District Judge Avent's striking-out order of 21 September 2017 upheld) ([16]–[17]).
• Court of Appeal (Civil Division): Permission to appeal granted by Andrews LJ (10 January 2022) on limited grounds; full hearing before Coulson LJ, Stuart-Smith LJ and Peter Jackson LJ — this judgment (06 April 2022) allowed the appeal on the limited grounds and remitted the matter to the County Court ([18], [66]).