Court of Appeal
Date: 22/10/10

The Issues: These were conjoined appeals where the Claimants had issued proceedings towards the very end of the limitation period but the cases were then struck out because of their solicitors failure to serve the Claim Forms within the 4 month period allowed under the CPR. The Claimants then issued fresh proceedings, relying on s.33 of the Limitation Act 1980, but was this an abuse of process?

Held: The Defendant ‘s central submission was that a failure to serve in time in the first action is so serious a misuse of procedure and is so strictly regarded as an act of disrespect to the court that the second claim must be struck out without reference to the s.33 discretion. However, the Claimants' argued this had never been the case in any of the numerous cases which had considered the problem previously and would be putting the clock back to before the recent House of Lords decision in Horton v Sadler (2006) .

It is important to note that although the Claimants, through their solicitors, had been at fault for failing to serve their claim forms within the required time, this was the only breach of a court rule and the Defendants had been well aware of the claims before the error had occurred, and had admitted liability.

Lord Justice Rix explained that the issue was a tension of on the one hand the strictness the rules of court regard a failure to serve a claim form in time, and on the other hand the statutory concession which Parliament has allowed PI claimants who fail to issue their claims within the limitation period. The s.33 discretion is wide and traverses all the circumstances of the case, but is largely determined by the question of prejudice to the parties.

The Court of Appeal concluded that the Defendants argument that to issue a second claim form in these circumstances is an abuse of process failed [para 89]. A “mere” negligent failure to serve a claim form in time has never been held to be an abuse of process, although a single negligent oversight to serve in time (i.e. a “mere” negligent failure) is distinguishable from other cases where there is an inordinate or inexcusable delay, intentional default or a wholesale disregard for the rules [para 90].

The Court therefore allowed both appeals and set aside the orders for striking out the Claimants second actions, although the s.33 discretion point was to be decided as a separate issue.

Comment: Clearly a very useful case and a sensible decision which finally abolishes the previous contradiction that a claimant was in a better position by failing to issue proceedings within the limitation period than by issuing proceedings in time, but then failing to serve the proceedings within the 4 month period allowed. However, a court may consider an inordinate or inexcusable delay is an abuse of process and so a fresh claim should issued without delay on a solicitor discovering that the time for service of a claim form has elapsed.

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