Full case report
Wilkey & Another v BBC
Reference  EWCA Civ 1561;  1 WLR 1;  4 All ER 1177
Court Court of Appeal
Judge Simon Brown, Buxton & Carnwarth LJJ
Date of Judgment 22 Oct 2002
Civil procedure – Late service of claim form – Deemed date of service – Actual date of service – Dispensing with service under CPR Part 6.9 – Exceptional circumstances – Claimant at fault
C issued a libel claim 2 days before the expiry of the limitation period, and served the claim on the last day of the 4 month period for service by hand-delivering the claim form by courier to the BBC’s legal department at 2pm. As held in Godwin v Swindon Borough Council  1 WLR 997, by virtue of CPR Part 6.7(1) service was irrebuttably deemed to have occurred on the following day, with the consequence that the claim was served out of time and the action was prima facie time-barred. Gray J dismissed C’s claim. C appealed.
After Gray J’s ruling, the CA ruled in Anderton v Clwyd CC  EWCA Civ 933 that in exceptional circumstances the court can use its power under CPR Part 6.9 to dispense with “proof” of service of a claim form where D has in fact received it by a permitted method of service before the end of the period of service (“category 2 cases”). The issues therefore were:
(a) the general approach to the exercise of discretion in category 2 cases; and
(b) how the discretion should be exercised on the particular facts of the case.
(1) In category 2 cases which arose before the CA gave its ruling in Anderton the dispensing power should normally be exercised in C’s favour, but in post-Anderton cases the opposite outcome should be the norm.
(2) There were not good reasons for departing from this approach in the instant case, which had arisen before the clarification of the law in Anderton. It was irrelevant that Gray J said that he would have declined to disapply the limitation period even if he had had the power to do so, which he did not. C’s primary purpose was not to vindicate his reputation (the BBC had already apologised) but to recover special damages estimated at over £300,000 – so time was not of the essence. The fact that the special damages claim was still substantially unquantified and somewhat opaque was not a good enough reason for not allowing the claim to go forward. The BBC had suffered no prejudice by the deemed late service of the claim form.
It would have been logical for the Court to rule that the cut-off point should be post-Godwin rather than post-Anderton, since it was the former decision which should have alerted claimants to the fact that the deemed service provisions in the CPR were irrebuttable. But the Court recognised that these provisions represented a “new culture” which had taken time to “become bedded down”. So the Court retrospectively granted claimants in category 2 cases a further period of grace in which they could continue not to comply fully with the CPR service provisions – a period of grace which they decided should be treated as ending on the date of the Anderton decision. This was apparently on the basis that Anderton was the last of a trilogy of Court of Appeal cases in which the impact of the new CPR regime in this area of procedure had been fully teased out.
Osborne Jones for the Claimant; BBC Litigation Department for the Defendant
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