St Helens MBC v. Barnes

When is a claim “brought” for the purposes of the Limitation Act 1980?

The case of St Helens MBC v. Barnes[1], which was decided by the Court of Appeal on 25^th October 2006, centred on a never previously considered, but fairly crucial question: when is a claim “brought” for the purposes of the Limitation Act 1980?

The Facts

The Claimant alleged that she suffered personal injury as a result of the negligence and/or breach of statutory duty of the defendant education authority. The primary limitation period expired on the Claimant’s 21^st birthday, namely, 5^th November 2004.

On Thursday, 4^th November 2004 the Claimant’s solicitor attended Liverpool County Court with the proceedings. He handed over two copies of the Claim Form and the issue fee. The accompanying letter asked the Court Office to issue the Claim Form and return the relevant documents to him for service. The Court Office stamped a copy of the letter to show that the proceedings had been received on 4^th November 2004.

On Friday 5^th November 2004 the Claimant’s solicitor telephoned the Court Office to enquire as to whether the proceedings had been dealt with. He was informed that although the office was open, the staff working in the new issue section were absent because of industrial action. He was told that they would be back at work on the Monday, i.e. 8^th November 2004.

For this reason, the Claim Form was not issued and dated until 8^th November 2004.

Not surprisingly, the Defendant raised a limitation defence. The matter came before HHJ MacMillan, sitting at Liverpool County Court. The dispute centred around the proper construction of paragraph 5.1 of the Practice Direction which supplements Part 7 of the CPR. It provides that:

“5.1      Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is “brought” for the purposes of the Limitation Act 1980 and any other relevant statutes on that earlier date.”

Rule 7.2 of the CPR provided that:

“(1) Proceedings are started when the court issues a claim form at the request of the claimant;

(2) A claim form is issued on the date entered on the form by the court.”

HHJ MacMillan thought that there was no difference between the verbs “to bring” and “to start”. However, he acceded to a submission that the rule 7.2 was ambiguous and resolved the ambiguity by reference to the Practice Direction. He concluded that the claim had been brought within the three year limitation period.

The defendant appealed this decision.

Submissions in the Court of Appeal

The defendant submitted that the claim is “brought” when the claim form is started, and that date is the date shown on the Claim Form. It was said that until an action is started there are no proceedings “brought” or otherwise, and it does not start until the court has formally recorded that fact. It was emphasised on behalf of the defendant that the Limitation Act provided generous time limits and the claimant who delayed commencing his claim ran the risk of the court not dealing timeously with its issue. By comparison, in some cases it might not be possible to determine when the court had received the request to issue proceedings, so certainty dictated that the relevant date be the date shown on the Claim Form.

On behalf of the claimant, reliance was placed upon the County Court Rules 1936, which were in force when the 1980 Act was passed. In both these, and the County Court Rules 1981 (which followed the next year), proceedings are described as being “brought”.

The Court of Appeal’s decision

The leading judgment was given by Tuckey LJ. Arden and Lloyd L.JJ agreed with him.

Tuckey LJ said that there was, surprisingly, no authority directly on the point. Reference was made to two pre-CPR authorities and two post-CPR authorities. These decisions were Pritam Kaur v. S. Russell & Sons[2], Riniker v. University College of London[3], Van Aken v. Camden London Borough Council[4] and Salford City Council v. Garner[5].

The learned Lord Justice observed that in both Pritam Kaur and Riniker the courts had given the claimants the full period for bringing proceedings afforded by the Limitation Act. This had occurred in circumstances in which, in both cases, the claimants had taken the necessary steps required to enable the proceedings to be started but had run up against difficulties caused by the court being closed or unwilling to issue the proceedings. Tuckey LJ added that paragraph 5.1 of the Practice Direction reflected this position. It was a provision which had first appeared in 1999 and had remained unchallenged until now. Nothing in the two post-CPR cases could be said to undermine it. As a Practice Direction it could not contradict the Rules, but it was a valuable aid to the construction of the Act in the light of the Rules.

Tuckey LJ went on to say that when he looked at the words used in the statute and the rules he expected to see the expiry of the limitation period fixed by something which the claimant has to do, rather than something which someone else, such as the court, has to do. He said that the act which the claimant had to perform (i.e. the making of the request) was unilateral; it was something over which he had control. By comparison, the issue by the court of the Claim Form was transactional and was something over which the claimant had no control. Looked at in this way, the learned Circuit Judge had been wrong to conclude that in this context the verb “to bring” had the same meaning as the verb “to start”.

Tuckey LJ said that this construction, i.e. the unilateral one, accorded with the pre-CPR authorities of Pritam Kaur and Riniker, as it ensured that the claimant was given the full period provided by the Limitation Act within which to take the necessary steps to commence proceedings and did not expose him to the risk that the court would fail to process his request in time.

The learned Lord Justice added that he did not think that reliance upon the 1936 Rules or the 1981 Rules assisted in answering the question the Court had to decide.

Comment

This is a welcome decision, as it clarifies an issue which was previously quite unclear. Moreover, the Court of Appeal expressly acknowledged that its significance extended beyond personal injuries work and was of general application to any claim arising under the Limitation Act 1980.

Interestingly, the Court of Appeal also felt the need to state that its decision was not to be taken to extend to the situation in which the request to issue the Claim Form was sent to the wrong place or, more notably, was made outside office hours. The Court said that different considerations might apply in these situations. The guidance that one derives from these obiter comments is that if the expiry of the relevant limitation period is imminent, every effort must be made by claimant solicitors to ensure that the request to issue proceedings is delivered to the court by whatever means is permitted by the rules during the hours when the court is open. Those practitioners who ignore this sensible advice do so at their peril!

Daniel Tobin

9^th November 2006.