Barry Roy Peterson & Anor v Howard de Walden Estates Limited

CPR rule 3.10 permits the court to remedy procedural errors in existing proceedings, including defects in form, but its scope is not unlimited.

It does not permit the court retrospectively to validate proceedings that were never issued because the required court fee was not paid. That is not an error in a procedure established by the Civil Procedure Rules 1998. Nor may rule 3.10 be used to override a statutory time limit or reverse the statutory consequence of expiry under the Leasehold Reform, Housing and Urban Development Act 1993.

The claimants sought to exercise rights concerning the grant of a new lease. After the lease terms had been agreed, they had to apply under section 48(3) of the Leasehold Reform, Housing and Urban Development Act 1993 within the statutory period.

They delivered a draft Part 8 claim form to the county court before the deadline, but authorised payment of an outdated court fee. The court therefore did not issue the claim form until after the statutory period had expired. The claimants applied under CPR rule 3.10 for the claim to be treated as issued on the earlier date. A recorder refused the application, holding that rule 3.10 did not apply. The issue on appeal was whether failure to pay the fee necessary to issue the claim form was an error of procedure within rule 3.10.

1. The appeal was dismissed. The recorder correctly held that CPR rule 3.10 gave no jurisdiction to grant the relief sought.

2. Rule 3.10 must be read widely, but in its context. Steele v Mooney established that “error of procedure” is not confined to failure to comply with a rule or practice direction. The rule nevertheless concerns errors in procedures established by the CPR, or potentially equivalent procedural provisions, and operates to regularise existing proceedings.

3. The claimants’ mistake concerned payment of a fee required by the Court Fees Order 2008 and by the administrative arrangements governing issue of claim forms. It was not a failure to comply with a procedural requirement made by the Civil Procedure Rule Committee. The claim form had not been issued, so there were no existing proceedings to regularise.

4. Rule 3.10(a) and (b) operate sequentially. The first addresses whether an error invalidates a step in proceedings; the second gives power to remedy that error. This structure supports a post-commencement scope. The rule cannot be used to create valid proceedings retrospectively or to cure a substantive nullity, consistently with Jennison v Jennison, Kimathi v Foreign & Commonwealth Office (No 2) and Maridive.

5. Manolete Partners PLC v Hayward & Barrett Holdings Ltd did not assist the claimants. That case concerned existing proceedings, issued under the wrong procedural regime, and a failure to comply with procedural rules. It did not concern the initiation of proceedings without payment of the fee required for issue.

6. The court did not need to exercise a discretion under rule 3.10. However, the recorder was entitled alternatively to refuse relief because granting it would retrospectively extend or dispense with an absolute statutory time limit and would cause injustice to the landlord. Parliament had balanced certainty with the competing interests of tenants and landlords, and the court could not revise that balance.

1. High Court (King's Bench Division) — The appeal from Recorder Hansen’s decision of 21 September 2022 was dismissed. The recorder had correctly held that CPR rule 3.10 did not confer jurisdiction to treat the unissued claim form as issued before expiry of the statutory period.