Various parties appealed refusal and grant of extensions of time for service of claim forms.
Held: The court gave detailed guidance. The three central issues were the proper construction of the rule, the question of whether the court could reconsider an application made without notice and on paper, and whether the Hashtroodi guidance was being followed properly. The court was concerned that it appeared to be a view on the part of the legal profession that if an order had been obtained ex parte, it was possible to apply under rule 3.1(7) to have it set aside. This would be a means of circumventing the central position of the Civil Procedure Rules that orders should in future be appealed, and not merely be taken to a judge in chambers to be reviewed.
The court considered the meaning and effect of CPR Part 6 and CPR rule 7.6, and the meaning of the phrase ‘no solicitor acting’ in rule 6.5(6) providing that, ‘Where (a) no solicitor is acting for the party to be served; and (b) the party has not given an address for service, the document must be sent or transmitted to, or left at, the place shown’ in a table set out.
Held: The expression ‘no solicitor acting’ meant ‘no solicitor acting so that he can be served’ and ‘We put it that way because, unless the claimant has been made aware by the defendant or his solicitor that the solicitor is authorised to accept service, the claimant would be ill-advised to serve on the solicitor’.
Because the claimants had not been told by [the defendant’s solicitors] that they were acting on behalf of the defendant and were authorised to accept service, there was no solicitor ‘acting’ for the defendant within the meaning of CPR rule 6.5(6): there was no solicitor acting so that he or she could be served’.
. . And ‘We agree that the power given by CPR r.3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under r.3.1(7). . . ‘The possibility of recourse to CPR r.3.1(7) remains to be considered. As we have said earlier, this rule gives a very general power to vary or revoke an order. It appears to be unfettered. But it is a wrong exercise of this power to vary or revoke an order where there has been no material change of circumstances since the earlier order was made and/or no material is brought to the attention of the second court which was not brought to the attention of the first. . . In short, therefore, the jurisdiction to vary or revoke an order under CPR r.3.1(7) should not normally be exercised unless the applicant is able to place material before the court, whether in the form of evidence or argument, which was not placed before the court on the earlier occasion.’
Judges:
Waller LJ, Dyson LJ, Neuberger LJ
Citations:
[2006] EWCA Civ 20, Times 03-Feb-2006, [2007] 1 All ER 991, [2006] 1 WLR 1945
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Hashtroodi v Hancock CA 27-May-2004
The claimant had issued proceedings in time, but then the limitation period expired before it was served, and in the meantime the limitation period had expired. The defendant appealed against an automatic extension of time for service granted to the . .
Approved – Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen ChD 15-Jul-2003
The defendant sought a variation under Part 3.1(7) of an order setting aside an earlier judgment in default of defence, on terms requiring a substantial payment into court with which the defendant, who was a litigant in person, had not complied.
Cited by:
Cited – Shaw and Another v Massey Foundation and Pilings Ltd TCC 12-Mar-2009
The appellants had argued that they were not subject to the construction arbitration system because they were residential occupiers. They now said that as consumers vis a vis the construction contract. . .
See Also – Harlow and Milner Ltd v Teasdale (No 2) TCC 15-Mar-2006
The fact that a paying party has commenced substantive arbitration proceedings is usually irrelevant to the successful party’s right to enforcement of any judgment. . .
Cited – Brown and Others v InnovatorOne Plc and Others ComC 19-Jun-2009
The claimants served proceedings by fax. The defendants denied that it was effective saying that they had not confirmed that they were instructed to accept service or that as required by the rules they had confirmed that they would accept service by . .
Cited – Kojima v HSBC Bank Plc ChD 22-Mar-2011
The defendant had been found to owe money to the bank. In order to avoid damaging his career he agreed to execute a charge to secure the judgment. He now sought release from that order, and to withdraw his admission of the debt. He had acted in . .
Cited – Edwards v Golding and others CA 3-Apr-2007
The claimant appealed against an order that his claim in defamation had failed for limitation, the judge having held that time ran from publication even though the claimant did not know the identity of the author.
Held: The appeal was . .
Cited – Kamali v City and Country Properties Ltd CA 24-Jul-2006
The defendant tenant appealed against judgment saying that the proceedings in the County Court had not been correctly served. Though the documents had been sent to his address under the lease, he had been out of the jurisdiction when the claim was . .
Cited – Venulum Property Investments Ltd v Space Architecture Ltd and Others TCC 22-May-2013
The claimant sought an extension of time to serve the Particulars of Claim. The solicitors said that they had misread the relevant Rules.
Held: The solicitors had acted on the basis of the former practice, but the rules had been substantially . .
Cited – Thevarajah v Riordan and Others SC 16-Dec-2015
The defendants had failed to comply with an ‘unless’ order requiring disclosure, and had been first debarred from defending the cases as to liability. They applied to a second judge who granted relief from sanctions after new solicitors had complied . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Civil Procedure Rules
Updated: 04 July 2022; Ref: scu.238131