Wrong Party

Elmes v Hygrade Food Products plc (CA [2001] EWCA CIV 121)

When a claim form is served in time but incorrectly (here, on the defendants’ insurers instead of on the defendants themselves), is there power in the court on the claimant’s application under CPR 3.10(b) (to remedy the error) and CPR 6.8 (for an order deeming service to have been good service by an alternative method not permitted by the rules)? Although it is tempting to try to find some way of denying the defendants the windfall of a good Limitation Act defence, thereby throwing the relevant liability upon the claimant’s solicitors’ insurers, the fatal flaw in the argument is that it implies rule 6.8 can be applied retrospectively. If one asks what order the court is to make to rectify the mistake made here by the claimant’s solicitors, it can only be an order under rule 3.10 that an order for alternative service, not in fact made under rule 6.8, shall be deemed to have been made. The plain fact is that no rule 6.8 order here was made and, of course, there was never an application for alternative service, let alone for an order dispensing with service. Nor would it have been proper to make any such order.