You are here

Late service not in itself an abuse of process, appeal judges rule

26 October 2010

A “mere negligent failure” to serve a claim form in time under the civil procedure rules is not in itself an abuse of process, the Court of Appeal has unanimously held.

Lord Justice Rix said he did not want to be “in any way dismissive” of the strictness with which failure to serve in time had been dealt with by the courts. “However, all the cases make clear that for a matter to be an abuse of process, something more than a single negligent oversight in timely service is required: the various expressions which have been used are inordinate and inexcusable delay, intentional and contumelious default, or at least wholesale disregard of the rules.”

The court was ruling in Aktas v Adepta [2010] EWCA Civ 1170 and Dixie v British Polythene Industries, conjoined appeals raising the question of whether a claim form, issued at the end of a limitation period and struck out owing to failure to serve in time, could be resurrected in a second action relying on the judge’s discretion under section 33 of the Limitation Act 1980.

The court heard that Mrs Aktas suffered her injury in September 2004, but her claim form was not issued until the last day of the three-year limitation period in September 2007, and served until a day after the deadline expired.

The claim was set aside and the second claim struck out in the county court as an abuse of process.

Mr Dixie was injured in 2005 and his claim form issued three years later, shortly before the deadline. Following an oversight, it was not served until two weeks after the deadline. The claim was struck out by a district judge and a second claim was also struck out as an abuse of process.

Giving the leading judgment at the Court of Appeal, Lord Justice Rix said “the strictness with which the time for service is supervised has entirely valid public interest underpinnings which are quite separate from the doctrine of abuse of process.

“It is sufficient for the rules to provide for service within a specified time and for the courts to require claimants to adhere strictly to that time limit or else timeously provide a good reason for some dispensation. There is no need for that procedure to be muddled up with the different doctrine of abuse of process.”

Rix LJ went on: “There is of course the (possibly) new argument in the era of the CPR which emphasises the importance of any misuse of court resources. It is well to be aware of the important public interest bound up in the efficient use of those limited resources.

“However, to seek to turn that proper concern, in such a case as these, into a surrogate for the doctrine of abuse of process is to my mind a disciplinarian view of the law of civil procedure which risks overlooking the overriding need to do justice.”

Lord Justice Rix allowed both appeals and set aside the striking out orders for the second actions. He said the trial court would have to exercise its discretion under section 33 in the case of Mrs Aktas, but he exercised it in favour of Mr Dixie.

Lord Justices Longmore and Aikens agreed.

Categorised in:

Procedures Vulnerable Clients Courts & Judiciary