Court of Appeal decision on cross-border claim

23 May 2022

In the case of Chelfat v Hutchinson 3G UK Limited 2022 the Court of Appeal has handed down a judgment which is noteworthy to practitioners in the field of cross-border litigation.

 

The case concerned a contract claim brought by a litigant in person against a company based in Scotland (or at least as addressed on the Claim Form). The Claimant had failed to complete a Form N510 for service out of the jurisdiction and as a result the court had refused to issue the claim form. When the Claimant tried to issue again and serve at an address within the jurisdiction, he had on the face of it missed the limitation period and the Defendant was successful in striking out the claim on the grounds that it was time barred. The Claimant appealed and the Court of Appeal were asked to consider whether the CCMCC was entitled to refuse to issue the original claim form and whether it was arguable that the action was brought at the time of the original claim having been received by the CCMCC. The Court of Appeal decided the CCMC were not permitted to refuse to issue a claim and that effectively the claim was brought at the time the original claim form was received by the court.

In practical terms this means that in cross border claims (whether contact or tort) a Claimant simply needs to deliver a claim form to the court in time for issue and pay the relevant fee. The claim should not be returned unissued just because there has not yet been compliance with a procedural requirement that relates to service rather than issue.

One practical issue arising for Defendant practitioners is that of when a file on which liability has been repudiated can safely be closed. Originally Defendants could safely conclude that a claim was not being pursued after the passing of the primary limitation period plus the additional service period. However, under CPR PD7A a claim may be brought in time for limitation when received by the Court but the service period won’t run until it is formally issued. When Court delays are factored in this has meant that valid proceedings have in recent times been served on Defendants many months after they would normally have had every reason to expect the claim wasn’t being pursued. The decision in this case may mean that even more cases thought to have been concluded will be rejuvenated. Defendants will need to check carefully to see if a case has been brought in time.

 

Author

Kelvin Farmaner

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