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

By the time of the second appeal the Respondent had filed a Respondent’s Notice arguing that the defect in the procedure in relation to the claim form could be cured by CPR r.3.10 (see Appendix §108).

In an ex tempore judgment delivered on 30 September 2024 HHJ Salmon identified the issues as follows (I paraphrase):

As to the first question, he identified that the county court’s jurisdiction to grant injunctive relief arises from section 38 CCA 1984 (see Appendix §96). This refers to the court being able to make an order in “any proceedings” in the county court (judgment at [20]). The judge observed that a lay person would “obviously” believe that proceedings were afoot as soon as the N16A had been issued by the court, even if the proceedings had been commenced in the wrong form ([21]). He explained his position more fully thus:

“[26] The word “proceedings” is not in itself defined in the Civil Procedure Rules, but in section 147, the interpretation section of the County Courts Act 1984, “proceedings” includes (my emphasis) “both actions and matters”. An “’action’ means any proceedings in the county court which may be commenced as prescribed by plaint”, and “‘matter’ means every proceeding in the county court which may be commenced as prescribed otherwise than by plaint.”

[27] The word plaint is not defined in the County Courts Act. However, it is probably most closely allied to what in the High Court was a writ, and that is because the definition section of proceedings is the same in the previous Supreme Court Act which dealt with High Court matters, save the word plaint is replaced by the word writ.

[28] Thus, it can be seen that the County Courts Act does not limit the word “proceedings” to just an action or plaint rather it simply includes it. It is clear that the act envisages a wider interpretation than just meaning when matters are started by the issue of a Part 7 or Part 8 claim form. That is also implicit in the fact that CPR 25 indicates that a court can grant an interim remedy is granted before the issue of a claim.

…

[31] … as CPR 25 allows interim injunctions to be made before claims are issued it follows that CPR 2.1 reference to “proceedings” is wider than just what occurs after a Part 7 or Part 8 claim is issued

[32] … In my judgment, it follows that the word "proceedings" can include matters which the court are seised with, that it is asked to make an order about.

…

[35] … "proceeding[s]" in effect in this circumstance occurs when a court is being invoked to do something i.e. in this case to grant an injunction. The fact it was not done by a Part 8 claim form N208, does not mean there were no proceedings at all, making everything the appellant did a nullity”. (Emphasis by underlining added).

At [36] and [37] he described the jurisdictional basis for costs orders found in section 51 of the Senior Courts Act 1981 (‘SCA 1981’) (see Appendix §100 below). He said of this provision (which expressly refers to the “costs of and incidental to all proceedings” my emphasis) that:

“… the power to make costs arise from section 51 and, in my judgment, that supports the view that the proceedings is wider than merely matters which occur after a court has issued a Part 7 or Part 8 claim”.

HHJ Salmon referred at [39] to the fact that CPR r.2 (see Appendix §106) prescribes that “these Rules” (i.e., the CPR) apply to “all proceedings in the County Court” (my emphasis by underlining). “All proceedings in the County Court” must include applications under CPR Part 25 (including applications for “an interim remedy … before proceedings are started”: CPR r.25.2(1)) (see Appendix §113 to §115) and therefore matters occurring before a claim form is issued.

In his concluding paragraph on this first issue (at [46(c)]) he summarised the position as follows:

“The fact the court has an ability to grant injunctive relief prior to the issue of Part 7 or Part 8 claim (not disputed by the appellant) illustrates that “any proceedings” in section 38 covers invocation of the court to grant relief where no Part 7 or Part 8 claim has actually been occurred (sic). The fact one may be issued in the future does not invalidate the fact that the earlier order is made in “proceedings”. (The word ‘occurred’ in the version of the judgment supplied on appeal must, in my view, be a transcription error as it makes no sense. In context, the word is likely to have been ‘issued’).

And later in the same paragraph:

“… “proceedings” should be given their ordinary meaning, which in the context of a court means any course of action that a party is taking to get the court to grant them a remedy. The fact that the process might be flawed or done in the wrong way e.g. without the issuing of an N208 does not negate the fact there were proceedings. It simply means there were proceedings brought in an inappropriate form (which of course might have consequences) not that there were no proceedings”. (Emphasis by underlining added).

In relation to the second issue, he concluded that issuing the N16A “in effect means there are proceedings before the court albeit started using the wrong form and that the court has jurisdiction to correct this breach of the rules under CPR r.3.10.” ([48]).

In this regard, he cited (at [60]) from the commentary to the White Book at [3.10.3], (“Rectifying procedural errors other than errors as to the service of claim forms”), and read into his judgment the extract referencing Reddy v General Medical Council [2012] EWCA Civ 310, in which it was held:

“… that where a party intending to initiate an appeal uses a form other than the appropriate prescribed form and the form contains all the necessary information and could be fairly construed as informing the court and the respondent that by filing it at the court the party intends to commence appeal proceedings, that error can be treated as a procedural error capable of being remedied under CPR r.3.10”.

He further relied upon Hannigan v Hannigan [2000] EWCA Civ 159 at [33]-[34] (‘Hannigan’), wherein this court held that when the wrong form was used to initiate proceedings, the court did have a power to correct matters using its powers under CPR r.3.10:

“… the defendants were given all the information they required in order to be able to understand what order Mrs Hannigan was seeking from the court and why she was seeking it…” it is important not to lose “sight of the wood for the trees” (Brooke LJ at [33]).

The judge concluded that it was possible to deploy the jurisdiction under CPR r.3.10 to cure the defect in respect of the claim form. This translated into paragraph 2 of his order:

“The Appellant’s error of procedure in filing and serving form N16A rather than form N208 is remedied pursuant to CPR r.3.10 and the form N16A shall stand as a claim form in the proceedings”.

He went on to conclude that it would be appropriate (and “overwhelmingly” so) to use CPR r.3.10 to correct the error in this case for three reasons: (1) “not to do so would be an unjustified windfall” for the Appellant, who would otherwise be able to escape the consequences of starting such proceedings in the wrong form; (2) all of the necessary material is in an N16A, as is required in an N208 as set out in CPR r.8.2, and (3) this corresponds with the overriding objective.