Dorgan v Home Office (joined with Anderton v Clwyd CC)

Reference: [2002] EWCA Civ 933; [2002] 1 WLR 3174; [2002] 3 All ER 813

Court: Court of Appeal

Judge: Lord Phillips MR, Mummery & Hale LJJ

Date of judgment: 3 Jul 2002

Summary: Civil Procedure - Service of Process - Power to Extend Time for Service of Claim Form

Appearances: Christina Michalos QC (Appellant) 

Instructing Solicitors: Treasury Solicitors for the Appellant

Facts

Five joined cases concerning the construction and application of provisions in Part 6 (Service of Documents) and Part 7 (How to Start Proceedings-The Claim Form). The facts in Dorgan v Home Office were the Claimant alleged that whilst an inmate he was assaulted by prison officers on 14 April 1995. Proceedings were issued on 11 April 2000, just before the limitation period expired. The claim form was not served. The period of 4 months for the service of the claim form expired on 11 August 2001 (a Saturday). At 4.02 p.m. on Friday 10 August 2001 the claim form and the particulars of claim were sent by fax by the claimant’s solicitor. The receipt of the fax by the defendant’s solicitor was recorded as commencing at 4.03 p.m. The defendant’s solicitors, read it and made a telephone call about it to the claimant’s solicitors soon after. They contended that the fax was not deemed to be served until the next business day, Monday 13 August 2001, after the limitation period expired.

Issue

Whether, after the four month period for service of a claim form has expired and no application to extend time has been made, the Court had power to cure service deemed out of time by dispensing with service under CPR 6.9.

Held

Dismissing the appeal that whilst it was not open to the Claimant to adduce evidence of actual receipt in order to contradict the deemed day of service under rule 6.7, the appeal should be dismissed on the ground that the judge was entitled in the exceptional circumstances of the case to make an order dispensing with service of the claim form.

Comment

The court made clear that whilst there is a power to dispense with service of the claim form both retrospectively as well as prospectively, such a power was only exercisable retrospectively in exceptional circumstances. Leave to appeal to the House of Lords was refused.

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