CA-2024-002323 - [2025] EWCA Civ 1168

In view of my conclusions on the first issue above, it is not necessary for me to decide this second point. However I should make clear that I would dismiss the Appellant’s appeal on this secondary ground too.

Under the CPR certain applications for injunctive relief in the context of anti-social behaviour and harassment are properly brought (indeed are required to be brought) on form N16A; in those cases, the issue of the N16A is to be treated as the issue of a Part 8 claim. An application under section 3 of the PfHA 1997 is not one of those cases (see CPR PD65). A claim under section 3 of the PfHA 1997 is subject to the CPR Part 8 procedure (see CPR r.65.28(1)(a): see §50 above); the notes to the White Book make clear that a form N208 needs to be used to commence the proceedings which are Part 8 proceedings. Thus, it is clear that the Appellant’s claim was on the wrong form.

However, a claim under Part 8 does not require the same level of particularity in its pleading as a claim under Part 7 unless the court so orders (see CPR r.16.1 and notes in the White Book at [8.0.1] “the Pt 8 procedure is designed for the determination of relevant claims without elaborate pleadings” and [16.1.1]). So the fact that the N16A issued in this case under CPR Part 23 is light on this level of detail weakens the Appellant’s argument in this case that the proceedings were not effectively launched and more easily permits tolerance of this error in procedure. After all, CPR r.3.10 is widely drawn and offers the court unlimited discretion, exercisable in accordance with the overriding objective of dealing with cases justly and at proportionate cost (CPR r.1.1(1)). 

The approach outlined in the paragraph above is well-illustrated by Hannigan, where this court took a liberal approach to the technical errors involved when the claimant issued the proceedings in the wrong form where no real prejudice was caused to the defendant, in order to honour the overriding objective in the then relatively newly introduced CPR r.1.1. Brooke LJ said at [36]:

“… one must not lose sight of the fact that the overriding objective of the [CPR] is to enable the court to deal with cases justly, and this means the achievement of justice as between the litigants whose dispute it is the court's duty to resolve. In taking into account the interests of the administration of justice, the factor which appears to me to be of paramount importance in this case is that the defendants and their solicitors knew exactly what was being claimed and why it was being claimed when the quirky petition was served on them. … CPR 1.3 provides that the parties are required to help the court to further the overriding objective, and the overriding objective is not furthered by arid squabbles about technicalities such as have disfigured this litigation and eaten into the quite slender resources available to the parties”.

While Hannigan provides support for a flexible application to CPR r.3.10, Peterson (see §56 above) provides equally important authority for reading CPR r.3.10 “widely” (see [42]). In that case Eyre J held that the term “error of procedure” should not be given an “an artificially restrictive meaning” and cited for this proposition (at [42]) the judgment of Dyson LJ in Steele v Mooney [2005] 1 WLR 2819 at [18]-[24] to the effect that “procedural errors are not confined to failures to comply with a rule or practice direction” (ibid).

Against this background, I am satisfied that there were proper grounds for HHJ Salmon to conclude that the court could remedy the error of procedure by the issuing of the wrong form under CPR r.3.10.

First, the Appellant believed he was commencing a legitimate action by issuing a form N16A, and it would (as the judges below observed) be unconscionable to allow the Appellant to benefit from his own failures. In this regard I note (as HHJ Salmon noted) that in Reddy v General Medical Council (see §43 above) this court held that where the party who was intending to initiate an appeal had used a form other than the appropriate prescribed form (but the form used contained all the necessary information and could fairly be construed as informing the court and the respondent that by filing it at the court the party intends to commence appeal proceedings), that error could be treated as a procedural error capable of being remedied under CPR r.3.10.  While CPR r.3.10 cannot be used to permit something which the rules otherwise forbid (May LJ in Vinos v Marks & Spencer Plc [2001] 3 All E.R. 784 at [20]), that is not the situation here.

Secondly, proceedings had commenced, and the case of Peterson (§56 above) does not in fact assist Mr Hirst. In that case the claimant wished to use CPR r.3.10 to correct “the error of procedure” which was constituted by the failure to pay the correct court fee prior to the issue of the application. The ‘error of procedure’ in that case plainly occurred before the commencement of the proceedings, and the court rightly held that CPR r.3.10 could not come to the claimant’s aid. In this case, the application was properly issued, and the court fee was paid; the court was seised of the claimant’s application and proceedings had commenced. Peterson is useful authority (and supports the Respondent’s position in the instant appeal) for the proposition that CPR r.3.10 can be used (as the extract at §56 above confirms) to remedy “defects of form in proceedings once commenced”.

In my judgment, the error of procedure in filing a N16A rather than a N208 could be corrected under CPR r.3.10, with the effect that the form N16A stands as a claim form in the proceedings. In this respect, I endorse the approach taken by HHJ Salmon.