AN UNUSUAL SERVICE OF THE CLAIM FORM CASE: COURT GRANTS AN EXTENSION OF TIME IN JUDICIAL REVIEW PROCEEDINGS AGAINST THE CORONER

February 6, 2025 · by · in Applications, Avoiding negligence claims, Sanctions, Service of the claim form

In Whittle v HM Coroner for North West Wales [2025] EWHC 236 (Admin) the Administrative Court dealt with an issue relating to failure to serve the claim form in time.  The Court found a solution.  However the judgment is important in that it sets out the routes that were not available to the court, even in a case where everyone agreed it was important the action continued.

 

 

“… in another sort of case, those facts alone may not justify an application to extend time for service under r.7.6(3)(b): Rogers, and the cases cited there, make that clear. But there is a unique feature of this case which does not exist in any of the reported cases. In all those cases, the defendant saw a positive advantage in seeking to rely on the failure to serve in time. That failure might give rise to a limitation defence. It might mean the end of a large claim that the defendant would otherwise have had to meet. A defendant in those circumstances has every incentive to rely on the procedural failings of the claimant and resist an extension of time for service. Where the service point is hotly disputed, the court must strike a balance between the parties”

 

THE CASE

The claimant brought proceedings seeking an order quashing an inquest and for a fresh inquest to be held.   This required the Attorney General’s authority, this was given on 5th January 2024.  The defendant Coroner agreed that it was in the interests of justice for a fresh inquest to be held.  The court ordered a new inquest.

THE CLAIM FORM POSITION

However the claimant had not served a sealed claim form on the defendants within the time allowed by the rules. In many cases this is disastrous for a claimant.  The judgment sets out the routes that the court could not take to remedy the position.  On the specific facts of this case, where everyone agreed a new inquest was necessary and there was no limitation defence, the court extended time for service.  (Remember most claimants will not be so lucky).

THE JUDGMENT ON THE CLAIM FORM

THE PROCEDURAL POSITION

    1. As noted above, s.13(1) of the Coroners Act 1988 enables the High Court to grant a claim for a fresh inquest “on an application…under the authority of the Attorney-General”. Practice Direction 49E, at paragraph 20.3, states that for an application under s.13, “the claim form must… (2) be filed at the Administrative Courts; and (3) be served upon all persons directly affected by the application within six weeks of grant of Attorney-General’s fiat”.

 

    1. In this case the Attorney General’s fiat was issued on 5 January 2024. The six weeks therefore expired on 16 February 2024. The Part 8 claim form and accompanying documents were filed in person at the Bristol Civic Justice Centre on 14 February 2024. Also on 14 February, unsealed copies of the claim form and application were served on HM Coroner for North West Wales, and the two interested parties.

 

    1. The claim form was not issued by the court by 16 February 2024. It appears that Bristol Civic Justice Centre subsequently said that the documents should have been filed by way of CE File. The claim form and accompanying documents were refiled and issued on 7 March 2024.

 

    1. The claimant’s solicitors immediately acknowledged that they were out of time because the 16 February date had not been met. On 7 March, they made an application seeking “permission to issue Part 8 proceedings outside of the 6 week deadline of 16 February 2024”. The accompanying statement from Ms Scheel, the senior partner with the claimant’s solicitors, sought relief from sanctions. It was not clear from the papers whether the sealed claim form, issued on 7 March, had ever been served. Ms Noyce confirmed in answer to a question from the court that the sealed claim form was served on the defendant, HM Coroner for North West Wales, on or about 10 June 2024, together with the application for a fresh inquest dated 24 May 2024.

 

    1. The proceedings have had anything but a charmed life thereafter. They were transferred by Master Dagnall, without a hearing, from the King’s Bench Division to the Administrative Court on 22 April 2024. It seems the case was transferred to Cardiff and then came back to London. Lengthy delays have ensued since the application for a new inquest was formally made on 24 May 2024. None of those delays can be attributed to the parties.

 

    1. Despite that, however, there are a number of real problems with the claimant’s procedural position. First, the making of an application to issue the proceedings out of time was, with respect, misconceived. The claim form was issued by the court office on 7 March 2024: it bears a stamp to that effect. It has therefore been issued. The issue date cannot somehow be retrospectively altered.

 

    1. Moreover, the application for relief from sanctions was wrong in law. R (Good Law Project) v SoS for Health and Social Care [2022] EWCA Civ 355 at [79] is authority for the proposition that the principles in respect of relief from sanctions, and the well-known authority of Denton v TH White Limited [2014] 1WLR 3927, do not apply to the service of an originating process like a Part 8 claim form. This has been confirmed more recently in SoS for Levelling Up, Housing & Communities v Rogers [2024] EWCA Civ 1554 at [20].

 

    1. The problem here is an entirely different one. On the face of it, the sealed claim form should have been served by 16 February. It was not, because it had not been issued. Either the claimant needs to persuade us that the service of the unsealed claim form on 14 February was sufficient for the purposes of PD 49E, or he requires permission to serve the sealed claim form out of time (essentially, an extension of time). In addition, there is Ms Noyce’s new argument, revealed yesterday afternoon, to the effect that Master Dagnall must be “impliedly” taken to have granted relief from sanctions when he transferred the case to the Administrative Court in April 2024.

 

Service of the Unsealed Claim Form

    1. The first question is whether, under PD49E, valid service can be effected with an unsealed claim form. If so, since the unsealed claim form was served in time, the claimant does not require any assistance from the court.

 

    1. The insurmountable difficulty with that argument is that all the provisions in the CPR anticipate the service of an issued claim form: see in particular r.7.5(1) and (2). Moreover, Ideal Shopping Direct Ltd v Mastercard Inc [2022] EWCA Civ 14 is authority for the proposition that, for the purposes of the provisions in the CPR dealing with methods of service, a claim form “is the original document issued by the court on which the court seal is placed”. Sir Julian Flaux made that plain at [137], and went on at [144] to find that unsealed documents are not claim forms within the CPR. Thus, in the present case, the service of the unsealed claim form on 14 February 2024 was not good service.

 

    1. Under r.6.15, we wondered whether the court could retrospectively authorise service by an alternative method, namely the service of the unsealed claim form. The fundamental problem with that option is that, as set out above, proper service can only be of the sealed claim form. The defect here was precisely the same defect which the claimant could not get round in Ideal Shopping, namely the service of an unsealed claim form. Furthermore, whilst r.6.15 does allow consideration of alternative methods of service, that is concerned with how service is effected, not the defects in that which is purportedly being served.

 

    1. Accordingly, effective service did not take place on 14 February. It had not occurred by 16 February, which was the relevant expiry date. It occurred on or about 10th June 2024.

 

Other Potential Solutions

    1. We also wondered whether, under r.6.16(1), the court could dispense with service of the claim form altogether. We have considered that, but we do not think we can. It would, we think, be wrong in principle to dispense with service altogether in a case where the time limit expressly expired on service. In addition, the authorities are firmly against that course: Anderton v Clwyd CC (No.2) [2002] EWCA Civ 933 says that a court cannot dispense with service where no attempt was made to serve the sealed claim form in time; and Kuenyehia v International Hospitals Group Ltd [2006] EWCA Civ 21 suggests that the power to dispense with service altogether is unlikely to be exercised unless some attempt has been made to serve by a permitted method.

 

    1. The last option would be for this court to extend time for service pursuant to r.7.6(3)(b). There are some difficulties with that too: there is no formal application for an extension of time, and so rather limited evidence about whether the claimant’s solicitors took all reasonable steps to serve timeously.

 

    1. On the other hand, there are some elements of the evidence which suggest that time for the service of the claim form should be extended. We consider that the fact that the documents were filed with the court in time is a strong point in favour of an extension. So too is the fact that the unsealed claim form was served before the deadline, and the fact that, on the same day as they received the stamped claim form, the claimant’s solicitors tried to rectify the position by making their application for relief. Moreover, we consider that the court office should have said on 14 February that the documents could only be filed on CE File: if HMCTS wish to adopt an entirely paper-free process, the least they can do is to explain that to a court user, who bothers to attend personally to file a paper claim. The relevant delay therefore occurred at the court office and nowhere else.

 

    1. We accept that, in another sort of case, those facts alone may not justify an application to extend time for service under r.7.6(3)(b): Rogers, and the cases cited there, make that clear. But there is a unique feature of this case which does not exist in any of the reported cases. In all those cases, the defendant saw a positive advantage in seeking to rely on the failure to serve in time. That failure might give rise to a limitation defence. It might mean the end of a large claim that the defendant would otherwise have had to meet. A defendant in those circumstances has every incentive to rely on the procedural failings of the claimant and resist an extension of time for service. Where the service point is hotly disputed, the court must strike a balance between the parties.

 

    1. But that is not this case. Here, there is no limitation issue. Here, the defendant does not challenge the need for a fresh inquest; indeed, she encourages the court to order a fresh inquest. Moreover, it is plain, for the reasons that we have given, that the interests of justice require a fresh inquest. In all those circumstances, there is nothing whatsoever to be gained by this court refusing to extend time for service. The claimant may lose his ability to claim altogether. Or he may have to start the process all over again, with the raft of additional time and expense which that would bring with it.

 

    1. Furthermore, we have in mind the overriding objective (r.1.1). In circumstances where the application is not challenged, it seems to us that it would be a triumph of procedure over substance if an extension of time for service was not granted in the very particular circumstances of this case. Such an outcome would not be just or proportionate.

 

    1. Whilst that conclusion means that we do not strictly need to express a view about Ms Noyce’s argument that the order for transfer to the Administrative Court impliedly granted relief from sanctions, we should say that, in our view, that submission was wholly without foundation. First, for the reasons already advertised, relief from sanctions is inappropriate and irrelevant when dealing with the service of originating proceedings. Secondly, the application for relief, which talked about obtaining permission to issue out of time, was itself misconceived because the claim form is issued by the court, not the solicitors, and had been issued anyway. Master Dagnall would therefore have had no jurisdiction to grant relief from sanctions in such a case. Thirdly, this cannot have been an argument that had occurred to the claimant’s solicitors, let alone one that was relied on by them, since Ms Scheel’s second witness statement of 25 May 2024, sworn after the transfer order, referred to the ongoing application for relief from sanctions, and did not suggest that that had been dealt with by Master Dagnall. Fourthly, it is wrong to suggest that, simply because a transfer was ordered at a time when an application for relief from sanctions was outstanding, everything that had happened before the transfer was somehow magically regularised. There is no authority for such a proposition. Fifthly, there is nothing to suggest that Master Dagnall gave – or should have given – any consideration to this procedural tangle. He simply transferred the case and gave liberty to apply.

 

CONCLUSIONS

  1. For the reasons set out in paragraphs 27-45 above, we order that time for service of the sealed claim form on the defendant is extended to 12 June 2024. Out of an abundance of caution, time for service of the sealed claim form on the interested parties is extended to 29 January 2025.
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