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Associate Paul Grant and Paralegal Ben Pharaoh examine a recent decision from The UK Court of Appeal addressing the powers of the Court to backdate a claim form and the circumstances under which a claim form can be served.

Walton v Pickerings Solicitors and another [2023] EWCA Civ 602 (6 June 2023) The Court of Appeal has allowed an appeal against a High Court judgment that the claim form had not validly been served, in circumstances where the court seal had been backdated and the claim form had therefore expired, for service within the jurisdiction, before the claimant received it. The Court of Appeal held that the court has no power to backdate the claim form and must seal it with the date on which it is actually issued.

Background

The appeal in this case arose from a series of events where the Claimant, Mr Walton, issued a claim form at Court on 20 July 2020 but did not receive the sealed claim form until 7 December 2020. When Mr Walton received the sealed claim form, the issue date was backdated to 20 July 2020, which had the effect of interfering with the Claimant’s ability to serve the claim form on the Defendants.

Under Civil Procedure Rules 7.5(1), a sealed claim form must be served on the Defendant within four months from the date of issue. As such, although the Claimant served the sealed claim form on both Defendants within a matter of days of receipt, the four-month period in which the claim form must be served had already expired.

Consequently, Mr Walton applied for a retrospective extension of time for service, which was refused by Deputy Master Dray on 28 June 2021, and again on appeal by Mr Robin Vos (sitting as a Deputy High Court Judge) on 18 August 2022.

Mr Walton then appealed inter alia on the basis that the Court had no power to backdate the claim form, and that it was obliged to seal it with the date on which it was actually issued.

The CPR framework

Of particular relevance to this ground of appeal were Civil Procedure Rules 7.2 and 2.6 (which also apply in Gibraltar by virtue of s.38A(1) of the Supreme Court Act):

CPR r 7.2 deals with the commencement of proceedings and provides that: (i) proceedings are started when the court issues a claim form at the request of the claimant; and (ii) a claim form is issued on the date entered on the form by the court.

CPR r 2.6 provides that the Court must seal the following documents on issue of a claim: (i) the claim form; and (ii) any other document which a rule or practice direction requires it to seal. The court may place the seal on the document by hand, by printing or electronically.

It was submitted by the Appellant that the CPR treats the act of sealing the claim form and the issue of the claim form as a single act which takes place at the same time. Further, it was argued that there is no express power to seal the claim form with a date other than that on which it is in fact sealed.

The Court of Appeal’s Ruling

In his leading judgment, Mr Justice Nugee agreed with the Appellant and confirmed that proceedings only start when the court issues the claim form (CPR 7.2). Upon issue, the Court must seal the claim form (r 2.6(1)(a)), and that the very purpose of the seal is to indicate that the claim form has been issued by the Court. It follows, therefore, that until the claim form is marked with the seal, the document has not been issued and the proceedings have not commenced.

Indeed, the judge reasoned that it would be factually incorrect to propose that the proceedings, in this case, commenced on 20 July 2020. In the present case, the Court was willing to assume that the seal was, in fact, placed on the claim form on 1 December 2020. The judge held, therefore, that if the question had been asked on 20 July 2020, or on any date between then and 30 November 2020, “Have the proceedings been started?”, the only answer that could have been given would have been, “No”, because the claim form had not yet been sealed and issued. In these circumstances, Nugee LJ adopted a simple and natural reading of the CPR rules as he saw no reason why r.7.2(2) should confer an implied power for the Court to backdate the date of issue.

In his ruling, the judge also confirmed, by reference to Practice Direction 7A.6.1, that the date of issue under the CPR was not significant for limitation purposes, rather it is significant in that it has the effect of starting the timer for the purposes of service of the claim form. On this basis, it was argued that if the purpose of putting the date of issue on the claim form is to mark the beginning of the period for service, the effect of backdating would be detrimental for the Claimant as it would reduce the time they would normally be allowed under the CPR to serve their claim on the Defendant.