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Is this mistake a procedural or fatal error?

Is this mistake a procedural or fatal error?

Postby Denning » Wed Dec 21, 2016 8:40 am

A Landlord claimed to have mistakenly issued a possession proceedings using the possession claim online instead of a paper form given that the real grounds had nothing to do with rent arrears. Can this mistake be characterised as a procedural error in which case can be remedied under CPR 3.10 or a fatal error in which case the Landlord must start the process afresh?
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Re: Is this mistake a procedural or fatal error?

Postby atticus » Wed Dec 21, 2016 9:41 am

By reference to para. 5.1 of PD55B, I would say that you would be doing very well to persuade a court that the error is procedural.
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Re: Is this mistake a procedural or fatal error?

Postby atticus » Wed Dec 21, 2016 10:51 am

Although the CA case Cardiff City Council v Lee contains an interesting discussion on CPR 3.10:

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1034.html
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Re: Is this mistake a procedural or fatal error?

Postby dls » Wed Dec 21, 2016 5:24 pm

See also more generally:

Vinos v Marks and Spencer plc: CA 2001
References: [2001] 3 All ER 784
Coram: May LJ
Ratio: The appellant claimed personal injuries. His solicitors issued a claim form within the limitation period, but only served it after the expiry of the four month period after the date of issue within which CPR 7.5 stipulated that the claim had to be served. CPR 7.6 provided that a claimant could apply for an order extending the period within which the claim form had to be served.
Held: The special rule applied where an application was made after the time for service had run out, allowing the court to extend time only if certain conditions were fulfilled which were not fulfilled in that case. The more general words of CPR 3.10 could not be extended to enable a court to do what another rule expressly forbade. Rule 3.10 provides that, where there has been an error of procedure such as a failure to comply with a rule or practice direction, the error does not invalidate any step taken in the proceedings unless the court so orders and the court may make an order to remedy the error. The court could not extend time for service under rule 3.10 in circumstances where the power of the court to extend time was limited by the express provisions of rule 7.6(3), which provided that the court could make such an order 'only if' certain criteria were satisfied. The overriding objective is that civil litigation should be pursued with expedition. Criticism of solicitors may be muted but there are statutory limitation periods. It is unsatisfactory to allow almost three years to elapse and to start proceedings at the last moment. It is in accordance with the overriding objective that parties should make speedy progress and within time limits. Four months is more than adequate for serving a claim form. It is not unjust that, if you leave issuing proceedings to the last moment and do not comply with this requirement and do not satisfy the conditions in r 7.6(3), your claim is lost and a new claim will be statute-barred.
Statutes: Civil Procedure Rules 7.6(3) 3.10
This case is cited by:
    - Cited - Cranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA (Bailii, [2003] EWCA Civ 656, Times 16-May-03, [2003] 1 WLR 2441)
    In each case claims had been late in being served and extensions in time were sought and refused.
    Held: The recent authorities were examined. The words 'has been unable to serve' in CPR 7.6(3)(a) include all cases where the court has failed to . .
    - Applied - Steele v Mooney and others CA (Bailii, [2005] EWCA Civ 96, Times 15-Feb-05, [2005] 1 WLR 2819, [2005] 2 All ER 256)
    The claimant had sought an extension of time for service of her claim form in her action for personal injury. The solicitors in error did not include the words 'claim form' in their request. The judge had initially held the error was one of drafting . .
    - Cited - Nelson and Another v Clearsprings (Management) Ltd CA (Bailii, [2006] EWCA Civ 1252, Times 05-Oct-06, [2007] 1 WLR 962, [2007] 2 All ER 407)
    The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the . .
    - Cited - Aktas v Adepta CA (Bailii, [2010] EWCA Civ 1170, [2011] QB 894)
    The court was asked whether, when a claim was issued towards the very end of a limitation period, but was then not served, and the claim was struck out, CPR Part 7.5(1) gave a further four months in which it could be resurrected at the discretion of . .
    - Cited - Cardiff County Council v Lee (Flowers) CA (Bailii, [2016] EWCA Civ 1034, [2016] WLR(D) 536, WLRD)
    The court was asked: 'can the court proceed to validate a warrant of possession where a landlord who seeks to enforce his right to possession because of an alleged breach of the terms of a suspended possession order has not complied with CPR 83.2? ' . .
(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 21-Dec-16
Ref: 182213
2016/12/21
Civil Procedure Rules
See also: http://swarb.co.uk/vinos-v-marks-and-sp ... c-ca-2001/
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Re: Is this mistake a procedural or fatal error?

Postby Denning » Wed Dec 21, 2016 6:25 pm

Thanks for these authorities which I have read before seeking your opinion as to question asked. In fact from the PCOL webpage you can see the Cardiff and Lee case law through which you can work backwards on the various cases including the Vinos case law.

Are you willing to characterise the purported mistake made by the Landlord as either procedural or fatal given that the purported real basis on the grounds of possession had nothing to do with rent arrears?

Another question to be asked - is the start or process of issuing a court proceedings considered a procedure within the proceedings given the start is a fundamental first process or step zero?
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Re: Is this mistake a procedural or fatal error?

Postby atticus » Wed Dec 21, 2016 7:12 pm

You did not disclose your previous researches. We also post for the benefit of others.

Q1 no.

Q2 issuing a claim is a procedural step. But your problem is not with the issue of proceedings, but the proceedings that were issued.
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Re: Is this mistake a procedural or fatal error?

Postby Denning » Wed Dec 21, 2016 9:40 pm

The implication of your opinion = procedural error.
If the problem is not with the issue then CPR 3.10 is available as a potential relief to the Landlord. The implication of your response to Q2 showed that your answer to Q1 is deemed a procedural error. :D
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Re: Is this mistake a procedural or fatal error?

Postby atticus » Wed Dec 21, 2016 9:54 pm

No. I expressly answered your first question that I was not willing to make such a characterisation. To follow your line of thinking, if issuing proceedings was a procedural error, then the error of issuing proceedings is to be remedied by withdrawing them.

The choice is whether to try to put the existing proceedings right or to withdraw those proceedings and issue a fresh set. The latter course may be quicker. It may be no more expensive. But there is a good deal more to be looked at, not least the underlying facts giving rise to the claim.
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