The appeal decision in Harrison v University Hospitals Coventry & Warwickshire NHS Trust provides welcome clarity to the relationship between costs budgeting and detailed assessment. However, there is one element of the appeal that may have gone under the radar for some – namely being the question of when can a case be considered to be ‘commenced’?
Prinz Nagalingam, Solicitor, reports.
Under CPR 7.2(1) proceedings are deemed to be started when the court issues a claim form. The claim form is considered to be issued on the date entered on the form by the court.
In Harrison that date was 9 April 2013. The position of the receiving party was that because the letter sending proceedings to Court to be issued was posted under next-day delivery on 27 March 2013, the case had effectively been ‘commenced’ before 1 April 2013.
This was clearly important as to the application of proportionality in the context of the detailed assessment, given that CPR 44.3(7)(a) otherwise directs a Court to apply the ‘new’ test of proportionality where a case is deemed commenced from 1 April 2013 onwards – that test allowing costs that are disproportionate in amount to be disallowed or reduced, even where they had been assessed to be reasonably or necessarily incurred.
The receiving party cited an example of an industrial action where the sheer volume of claim forms being submitted at a relevant period may have in turn led to delays in formal issuance by the relevant court.
In the context of when the receiving party sought to commence proceedings in Harrison, it must be recalled there was an industry wide rush to issue claims before 1 April 2013 and so the pressure on issuing courts was very real.
Lord Justice Davis cited Salford CC v Garner  EWCA Civ 364,  HLR 35 as an example of where exceptions may apply (to the general rule that a claim is considered to be commenced on the date the court completes on the claim form).
In Salford CC limitation was due to expire on 8 November 2002. The claim form was handed to the court on 7 November 2002. In the event the claim form was not actually issued until 11 November 2002.
As to whether the claim was therefore statute barred the Court of Appeal held that the ‘beginning’ of the proceedings (within the terms of section 130 of the Housing Act 1996) was co-extensive with ‘starting’ proceedings under CPR 7.2.
The Court of Appeal (Maurice Kay LJ, paragraph 35) found that:
“…Where there is a general provision aimed at a point of time at which proceedings are started it follows that the assimilation of when proceedings are begun and when they are started is conclusive. The extended meaning, given specifically in the context of the bringing of proceedings for the purposes of the Limitation Act, has no bearing on the present circumstances…”
Salford CC was a case very much reliant on the wording of the Housing Act 1996 though it is worth reminding ourselves what the Civil Procedure Rules actually say with regards to commencement:
“Proceedings are started when the court issues a claim form at the request of the claimant” (CPR 7.2(1).
“A claim form is issued on the date entered on the form by the court“ (CPR 7.2(2).
Paragraph 5 of the Practice Direction 7A to Part 7:
5.1 Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.
5.2 The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.
5.3 An enquiry as to the date on which the claim form was received by the court should be directed to a court officer.
In Harrison there were no limitation factors at play.
The receiving party’s argument was that the language of CPR 44.3 (7)(a) is by reference to ‘cases commenced’ before 1 April 2013: not to ‘proceedings started’ (the language of CPR 7.2). This was said to connote a distinction between steps taken by a claimant to ‘commence’ a claim, and steps taken by a court to effect ‘issue’ of a claim.
Lord Justice Davis however was unconvinced that there was any distinction, observing that:
“It is impossible to divine any sensible differentiation in this context between the word ‘commenced’ and the word ‘started’ (or, indeed the word ‘begun’). They here mean the same thing: just as they did in the context of the decision in Salford CC v Garner [cited above].” (paragraph 59).
Davis LJ went on to observe that:
“…In CPR 3.12 – which itself relates to costs management – various transitional provisions apply to a ‘claim’ which is ‘commenced’ (although in one sub-paragraph the reference is to ‘proceedings commenced’).”
He noted that the receiving party seemed reluctant to give those words in that particular rule a meaning other than that connoted in CPR 7.2.
Black LJ cited the example of CPR 25.2 (which relates to interim remedies) which, all within the same rule, refers, without any apparent differentiation in actual meaning, variously ‘proceedings started’, to a ‘claim made’ and to a ‘claim commenced’: a lack of differentiation maintained by the commentary at 25.2.6 of the White Book:
“This yet further illustrates that a lack of total consistency of language for these purposes has no real bearing on the clear underpinning intent and meaning” (paragraph 61).
Thus in deciding this particular issue Davis LJ commented at paragraph 62:
“In my view, therefore, it is plain that a case is ‘commenced’ for the purposes of CPR 44.3 (7)(a) when the relevant proceedings are issued by the court. That, in the present case, yields the date of 9 April 2013. The proportionality provisions of CPR 44 (2)(a) and (5) apply accordingly”.
Given the large volumes of cases which were sent to courts for issue before 1 April 2013 this aspect of the judgment would appear to close the door on arguing that the ‘new’ proportionality test can be avoided where the court issued a claim after 1 April 2013 even where proceedings were received by the court before 1 April 2013, save for very limited circumstances.
Prinz Nagalingam, is a Solicitor at Victoria Square Chambers.
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