CA-2025-000452 - [2025] EWCA Civ 1413

THE ISSUES ON APPEAL

Issue 1: When was the claim form issued?

Mr Fry submitted that the Judge fell into error in finding that the claim form was issued on 13 December 2023, for two reasons, one legal, and one factual (these respectively encompassed grounds 1 and 2 of the appeal). His primary submission was that “issue” is not a word defined in the Glossary or elsewhere in the CPR and therefore must bear its ordinary meaning, namely: “the action of supplying or distributing an item for use, sale or official purposes.” Since supply or distribution is a bilateral process, a document cannot be “issued” to someone unless it is provided to them by giving or sending it to them. A document is not “issued” simply because someone stamps a date on it. CPR 7.2(2) must be interpreted through that lens. The Judge erred in not applying the plain meaning of the word “issue” and in conflating the two separate concepts of sealing a claim form and issue of the sealed claim form. The claim form could not be “issued” to anyone until it was despatched by post or other means, or otherwise made available.

However persuasive that analysis might have been in the absence of CPR r.7.2(2), it flies in the face of the clear language of that rule. The relevance of the date of issue is that it denotes the date on which proceedings are started (CPR r.7.2 (1)). A claim form is issued on the date entered on the form by the court. (My emphasis). That can only be a reference to its sealing by a court officer, which is a mandatory requirement. It cannot therefore be “issued” on a different date from the date on which it is sealed. Therefore, in order to find out the date on which proceedings are started, one looks at the date stamped on the face of the claim form. The date on which the sealed claim form is sent out by the court office is irrelevant. The acts of sealing and issue may be separate concepts but they are closely related and occur simultaneously; the act of sealing is done “on issue” and means that the claim form has been issued (not that it may be or will be issued in future). Its very purpose is to signify that fact, so that there is certainty as to the date when the proceedings have been started.

Were it necessary to find any support for that analysis, it can be found in the judgment of this Court in Walton v Pickerings Solicitors [2023] EWCA Civ 602; [2023] 1 WLR 3545. At [24] Nugee LJ (with whom Asplin and Falk LJJ agreed) recorded the submissions of counsel for Mr Walton, the appellant in that case, that:

“The rules treat the act of sealing the claim form and the issue of the claim form as a single act which takes place at the same time … CPR r 7.2(2) is not to be read as conferring a discretionary power on the Court to enter some different date on the claim form, but as requiring the Court to enter the date when the claim form is in fact issued.”

At [25] Nugee LJ accepted those submissions as “well-founded”. He said this:

“As appears from r 7.2, proceedings are not “started” until the Court issues the claim form. On issue the Court must seal the claim form (r.2.6(1)(a)), and the very purpose of the seal is to indicate that the claim form has been issued by the Court (see the Glossary). So until the claim form is marked with the seal the document has not been issued and the proceedings have not been started.” [My emphasis].

Far from supporting the Appellant’s case, as Mr Fry contended, this passage in Walton contradicts it. If “issue” means the act of sending or transmission, it is self-evident that the seal could not be affixed either simultaneously, or immediately after that was done. The rules are clear that it cannot be affixed prior to issue. The key question which the Court of Appeal addressed in Walton was whether there was a power to backdate the date of issue by stamping an earlier date on the claim form than the date on which the court officer physically stamped it. It held that there was no such power, which (as the Court pointed out) would have the unwelcome effect of artificially truncating the claimant’s time for service. The reasoning underpinning the Court of Appeal’s decision, consistently with the language of CPR r.7.2(2), was to treat issue and sealing as acts which cannot occur on different dates. It does not follow from that reasoning that issue must mean despatch.

Mr Fry contended that if the date of issue were not the date of despatch of the sealed claim form by the court office to the claimant, the Appellant would be just as disadvantaged as Mr Walton. The time for service would have been drastically truncated by the inaction of the court staff who failed to despatch the claim form until almost four months after it had been sealed. This was something for which the Appellant and her solicitors were in no way responsible. Those are arguments which would fall to be considered in the exercise of the court’s discretion to extend time for service, but they cannot change the plain meaning of CPR r.7.2 (2).

Mr Fry also referred to CPR r.7.7. He submitted that this rule presupposes that when the claim form has been issued (but not yet served) it will be in the control of the claimant (who is in a position to serve it). But that does not support the contention that the date of issue is the date of despatch.

The fact that the claim form has left the court office does not necessarily mean that it is in the control or the possession of the claimant (e.g. if it is sent out by post). That is illustrated by the present case, in which 13 days elapsed between posting and receipt. If the defendant were to seek an order for service of the claim form at a time when it had been issued but was not yet in the possession of the claimant’s solicitors (e.g. if it had been delayed in the post) the facts would emerge at the latest in the course of the evidence served in answer to the application, and if the court were persuaded that it was appropriate to do so, it would no doubt grant any necessary extension of time for service at that juncture. In my judgment CPR r.7.7 has no bearing on the question whether a claim form is issued on the date when it is sealed or at some later date.

I agree with the Judge that the Appellant’s primary submission is not only inconsistent with the language of the Rules but would have unwelcome practical consequences. As he said at [20], treating the date entered on the claim form as determinative of the date of issue is conducive to clarity and certainty, whereas treating the date of despatch as the key date could give rise to factual disputes about precisely when the claim form was sent out. It is no answer to that objection that the court is used to dealing with factual disputes as to when the office received the claim form, which is a relevant enquiry when establishing whether a claim was brought within the limitation period. The question whether there is a limitation defence is very different from the question when proceedings have been started, and if the rules of procedure are to operate effectively there must be clarity and certainty about the latter.

Mr Fry’s alternative submission was that if the Judge’s interpretation of CPR r.7.2(2) was correct, the Judge was wrong to treat the date stamp as determinative of the date of issue on the facts of this case. Mr Fry contended that the Judge erred when he found at [19] there was “no evidence” that the claim form was backdated (i.e. that in this case the court office had done what happened in Walton). He submitted that the Judge’s conclusion that the 13 December date was stamped on the claim form on 13 December 2023 and not on some later occasion between 27 March and 2 April 2024 was not reasonably open to him.

That submission hinged upon the correspondence of 30 January and 21 February 2024 to which I have referred at [15] and [16] above, which Mr Fry described as “at least prima facie evidence that the claim forms were backdated.” He asked, rhetorically, why did the CMCC seek further copies of the claim form from the Appellant’s solicitors in January 2024 if the court office had sealed the claim form a month earlier? But one might equally inquire, why did the CMCC ask again for the fee contribution payment, and tell the solicitors that it was unable to process the application until it was made, when payment had been taken over the telephone on 12 December, over a month earlier?

As the Judge said at [34], once the fee had been paid, there was no obstacle to the issuing of the claim form and nothing to suggest that there was an obstacle. What the solicitor was told when he rang up on 20 February 2024 was that someone in the court office had forgotten to update the system to record that the fee had been paid, and that that is what triggered the letter of 30 January. If the writer of that letter believed that the fee had not been paid in full, they would have had no reason to believe that a claim form had been validly issued, as payment of the fee (or a fee waiver) is a necessary precondition to issue. At that point, if they looked for an unsealed claim form they obviously would not have found it, because the claim form had already been sealed. That might explain the request in the letter for fresh copies of the claim form. However it is equally possible that the letter was written by someone who was simply labouring under a misapprehension.

The receipt for payment of the fee contribution was the first document on which the claim number appeared. The solicitor quoted that number in his response to the letter of 30 January and provided a copy of the receipt as supporting evidence of payment. Whilst there is nothing in the CPR to indicate when a claim number is assigned to proceedings in the County Court, it is reasonable to infer that this will be done at the point when it has been ascertained by the court office that all the relevant preconditions to issue of the claim form have been met, most importantly that the fees have been paid (or a fee waiver has been granted) and therefore at or very shortly before the time of issue. Numbers are presumably allocated in sequence, so that on 12 December 2023 this claim would have been allotted the next available number. That scenario is consistent with a claim form bearing that claim number being sealed the next day, 13 December. The receipt of payment and allocation of the claim number on 12 December therefore provide additional support for the Judge’s finding at [23] that the date of issue was 13 December 2023.

Of course, it remains a mystery why the sealed claim form was not then immediately despatched. The claim form may have been misplaced within the relevant department, or it may be that someone in the office, having checked the records, mistakenly believed that the fees had not been paid and that the claim form should not have been issued, and therefore held it back from being despatched. Whatever the reason for the delay between issue and despatch, it was primarily the responsibility of the court office. Of course at that stage (as the Judge found) the Appellant’s solicitors were unaware that the claim form had already been issued and that time for service had already started to run. Both these matters obviously factor into the exercise of the discretion to extend time. But the letter of 30 January 2024 cannot be evidence that the claim form had not already been issued, any more than it is evidence that the fees were not paid on 12 December 2023. At most it indicates that the person who wrote the letter was unaware that either or both those things had happened (which may or may not have been a consequence of a failure by someone to update the records).

Nor does the 30 January letter support Mr Fry’s theory that after the solicitors’ complaint was finally addressed in late March 2024, the office used the duplicate forms that had been supplied by the solicitors in February and affixed a backdated stamp to them. That theory is not entirely fanciful, but it relies on a great deal of conjecture. In Walton there was the clearest possible evidence of backdating because the version of the claim form which was issued (version 3) could only have been sealed between 5.30pm on 30 November 2020, which was the date on which Mr Walton emailed it to the court office, and 7 December 2020, the date when the office sent the sealed claim form back to Mr Walton - and yet it bore the date 20 July 2020, which was the date on which Mr Walton had sent version 1 of the claim form to the court office. It was apparently common ground, and found as a fact, that version 1 had got lost in the court system. The office could not possibly have sealed version 3 of the claim form on the date which appeared on its face.

In this case, however, it was not only possible but likely, as the Judge recognised, [19] that the claim form was sealed on 13 December 2023, the day after the payment of the fees was completed and the claim number was assigned. The unsealed claim form had been received in the court office with the Help with Fees form. There was no suggestion in December 2023 that it had been lost (or misplaced) during the period of just over a year which had elapsed before all the preconditions to issue were satisfied. If it had, one might have expected the CMCC to have informed the Appellant’s solicitor when they took the payment of the fee contribution over the phone, or when they sent him the receipt for payment, that they needed fresh copies of the unsealed claim form to process.

Unlike the case of Walton, there was no reason for the CMCC to have backdated the claim form (or to have chosen the date of 13 December 2023) if the true date on which the claim form was sealed was between 27 March and 2 April 2024. Indeed, if the office had used the duplicate forms which were sent to it by the solicitors in February 2024 they must have done so in the belief that a claim form had not already been sealed and issued. In those circumstances they would have been far more likely to stamp the actual date on the claim form they were about to issue.

An inference that, as in Walton, the original unsealed claim form was lost in the system (and never found) cannot be drawn from the fact that the sealed claim form bearing the date of 13 December was only despatched after the solicitors escalated the complaint on 27 March 2024. In the absence of any evidence that the claim form was actually sealed in March or April 2024 with a December 2023 date, the Judge was entitled to conclude, as he did, that the date appearing on the face of the seal was determinative of the date of issue. I agree with the Judge that there was no such evidence, and therefore this alternative way of putting the Appellant’s case must fail.