Court errs in backdating claim form

In Walton v Pickerings Solicitors & Anor [2023] EWCA Civ 602, the Court of Appeal allowed an appeal made by the Claimant against the High Court‘s finding that the claim form had not been validly served within the requisite timeframe.

What are the rules?

Under rule 7.5(1) of the Civil Procedure Rules ('CPR'), a claimant has to serve a claim form within four months of issue.

Rule 7.2(1) of the CPR states that “Proceedings are started when the court issues a claim form at the request of the claimant.”  Rule 7.2(2) of the CPR goes on to state that “A claim form is issued on the date entered on the form by the court.”

What happened in Walton?

Mr Walton attended the court on 20 July 2020 in order to issue a claim against Pickering Solicitors and Frank Brophy in relation to loss of profits over a land sale.

It appeared that the court had misplaced the claim form lodged by Mr Walton and therefore Mr Walton resubmitted a further copy on 30 November 2020.  On 7 December 2020, he received a sealed claim form from the court, for service on Pickering Solicitors and Frank Brophy, however, the court had taken the unusual step of backdating the claim form to 20 July 2020 (the date when Mr Walton initially presented the claim to the court).  Although Mr Walton served the claim form within a matter of days, the four-month period for service of the claim (under rule 7.5(1) of the CPR) had, on the face of it, expired on 20 November 2020 and he therefore applied for a retrospective extension of time for service.

At first instance, the court refused Mr Walton’s application and this decision was upheld by the High Court.  Mr Walton sought permission from the Court of Appeal to appeal the decision and permission was granted following a hearing on 16 May 2023.

Basis for the Court of Appeal’s decision

The Court of Appeal agreed that “the rules treat 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.  There is no express power to seal the claim form with a date other than that on which it is in fact sealed”.

Proceedings did not commence until the court issued and sealed the claim form and this did not take place until a period between 30 November 2020 and 7 December 2020.  The Court of Appeal found, having regard to the CPR and interpretation of the relevant rules, that there was no compelling reason for the court to have backdated the claim form to 20 July 2020, which had the effect of giving Mr Walton less time to serve the claim form than rule 7.5(1) of the CPR allows.

This decision highlights the key differences between a claim being “brought” for limitation purposes (when it is received by the court) and when it is issued (the date the court seal the claim form).  The relevant time for service of the claim is four months (six if serving out of the jurisdiction) from the date of issue.

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