Limitation—no Form N510, replacement claim form — claimant had done enough (Chelfat v Hutchinson 3G
This analysis was first published on Lexis®PSL on 19 April 2022 and can be found here (subscription required).
Dispute Resolution analysis: In the latest Court of Appeal case about what a claimant needs to do before the expiry of limitation, the court held that: (1) the County Court Money Claim Centre (‘CCMCC’) had not been entitled to reject a claim form with an address for service outside the jurisdiction for failure to file a form N510 with the claim (a mandatory requirement under CPR 6.34), and (2) it was arguable that the action started by the issue of a replacement claim form was ‘brought’ for limitation purposes when the rejected claim form was received by the CCMCC. The court considered the authorities on, but rejected direct analogy with, delivery of a claim form without the appropriate issue fee. Lord Justice Coulson adopted earlier dicta that ‘a claimant must have done all that he or she reasonably could do to bring the matter before the court in the appropriate way (and, I would add, at the appropriate time)’. The court was not persuaded that its decision on the second issue would open floodgates allowing litigants to rely on earlier (unissued) claim forms for the purposes of limitation.
(Robert Machell, instructed by Andrew Wilson and Trudy Rosevink of Womble Bond Dickinson, appeared for the Respondent)
What are the practical implications of this case?
On the narrow point, where a claimant intends to serve out of the jurisdiction without permission, this case provides clear authority that the court must issue a claim form delivered without a Form N510 or equivalent notice. The claimant will have done enough by delivering the claim form alone, notwithstanding the wording of CPR 6.34(1) that ‘the claimant must—(a) file with the claim form a notice containing a statement of the grounds on which the claimant is entitled to serve the claim form out of the jurisdiction’.
On the broader point regarding replacement claim forms, the case gives an expansive reading to the words ‘as issued’ in CPR PD 7A, para 5.1 ‘where the claim form as issued was received in the court office on a date earlier than the date on which it was issued...’. This may allow litigants to bring amended documents within the ambit of that provision.
The status of a claim form rejected for unpaid fees, a point left open in Hayes v Butters  EWCA Civ 252, remains unresolved. Coulson LJ cited the concerns of Lord Justice Peter Jackson (who gave the leading judgment in Hayes) about disallowing a claim on limitation grounds because of an inadvertent miscalculation of a court fee. Peter Jackson LJ agreed with Coulson LJ’s judgment in the current case. The direction of travel on the fees point seems clear, but it remains to be decided in another case.
What was the background?
Shortly before the expiry of limitation on her claims in tort, contract and under the Consumer Protection Act 1987, the claimant sent to the CCMCC a claim form for issue with an address for service in Scotland. The CCMCC rejected the claim form due to the absence of a Form N510, with a letter referring to CPR 6.34 and explaining that an N510 was required before issue.
The claimant learnt of the rejection after the expiry of limitation. She then delivered a replacement
claim form to the CCMCC, this time with an address for service within the jurisdiction. The claim was struck out on the defendant’s application, on the basis that it was statute-barred. The claimant sought unsuccessfully before the District Judge to have the strike-out set aside.
The court distilled the grounds of appeal into two issues:
was the CCMCC entitled to refuse to issue the claim form?
was it arguable that the action started by the issue of the replacement claim form was brought when the rejected claim form was delivered to the CCMCC? (The test was one of arguability because the decision to strike out the claim was made on the papers; the claimant had only to establish a real prospect of success)
What did the court decide?
The claimant’s second appeal of the dismissal of her set-aside application succeeded.
(i) CPR 6.34 and the Form N510
On the first issue, Coulson LJ (giving a reasoned judgment with which the rest of the court agreed) was clear that the CCMCC had not been entitled to refuse to issue the claim form for lack of an N510.
The court rejected the argument that non-issuance of the claim form was a sanction implied by the wording of CPR 6.34(1). The only sanction for failing to file the notice is the express sanction in CPR 6.34(2) which does not bite until the claim form comes to be served.
Coulson LJ raised the wider concern about whether the CCMCC had the power to reject any claim form. He observed that the powers of court officials have widened in the last decade and that a degree of scrutiny of documents was now permitted. However, in this case the claim form delivered had been in proper form and whatever powers the CCMCC had, its rejection had been unjustified.
(ii) The replacement claim form
The rejected claim form was not before the court, but the assumption for the purposes of the appeal was that it was identical to the issued claim form, but for the defendant’s address. The court said that drawing a distinction between the forms on that basis for the purposes of limitation would be ‘to elevate form over substance’. Of relevance was the substantive content of the claim form—the details identifying the parties and the claim actually being made.
Coulson LJ also briefly considered the status of proceedings brought in the unissued claim form.
Having decided that the CCMCC was wrong to reject the original claim form, the proceedings brought by that form could, technically, be reinstated. (This was apparently a reference to the power of the High Court to exercise the Riniker jurisdiction: Riniker v University College London  Lexis Citation 4421. However, it would be a pointless exercise of jurisdiction to do this where there were already proceedings on foot at a more convenient location.
Finally, Coulson LJ had little time for the ‘floodgates’ argument that widening the interpretation of CPR PD 7A, para 5.1. might encourage litigants to seek to rely on an unissued claim form as a limitation placeholder for subsequent forms apparently without temporal limit.
Court: Court of Appeal, Civil Division
Judges: Lord Justice Peter Jackson, Lord Justice Coulson and Lord Justice Stuart-Smith
Date of judgment: 6 April 2022
Written by Robert Machell, barrister, Chambers of Ian Mayes QC, 1 Essex Court.