B3/2000/3334 v EMILY TOTTY [2001] EWCA Civ 1415

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
(His Honour Judge S P Grenfell)
[2001] EWCA Civ 1415Case No B3/2000/3334, B1/2000/3729Venue Royal Courts of Justice, Strand, London WC2, Tuesday, 31st July 2001
Between
B3/2000/3334EMILY TOTTYClaimant/RespondentLEE SNOWDENDefendant/AppellantB1/2000/3729HILDA IRENE HEWITTClaimant/AppelantWIRRAL AND WEST CHESHIRE COMMUNITY NHS TRUSTDefendant/Respondent
Before
Lord Justice Peter GibsonLord Justice ChadwickLord Justice KayB3/2000/3334MR DAVID PEARCE HIGGINS QC (Instructed by Beachcroft Wansbroughs, 7 Park Square East, Leeds, LS1 2LW)appeared on behalf of the Appellant.MR MICHAEL HARRISON QC (Instructed by Jones Goodall, The Grain Store, Woolpacks Yard, Off Westgate,Wakefield, WF1 2SH) appeared on behalf of the Respondent.Date 31 July 2001
[1]Tuesday, 31st July 2001 LORD JUSTICE PETER GIBSON: Kay LJ will give the first judgment.

LORD JUSTICE KAY: The issue raised by these two appeals is whether the Court has a discretion to grant an extension of time to a claimant who has served a claim form within the time prescribed by the Civil Procedure Rules but who has either not served particulars of claim, or alternatively has failed to serve particulars that comply with the requirements of Part 16 of the rules, within the period prescribed by rule 7.5.

[3]The appeal in the case of Totty v Snowden is against a decision of His Honour Judge Grenfell sitting in the Queen's Bench Division of the High Court in Leeds dated 13th October 2000, by which he rejected an appeal brought by the defendant against a decision of District Judge Giles. On 19th July 2000, District Judge Giles had declared that pursuant to his powers under rule 3.10, the particulars of claim should be deemed to have been served within the period prescribed by the rules and refused the defendant's application for the claim form and the particulars of claim to be set aside. Judge Grenfell upheld the District Judge's ruling that there was a discretion to extend time and also upheld the District Judge's exercise of his discretion.[4]The appeal in the case of Hewitt v Wirral and West Cheshire Community NHS Trust is an appeal against a decision of His Honour Judge David Marshall Evans QC sitting in the Liverpool County Court dated 8th November 2000, by which he allowed an appeal from District Judge Jones. On 7th April 2000 District Judge Jones made an order which had the effect of dismissing the defendant's application that service of the claim form be set aside and ordering the claimant to serve particulars of claim that complied with rule 16.4 and paragraph 4 of the Practice Direction supplementing Part 16. Judge Marshall Evans considered the judgment of Judge Grenfell in the case of Totty v Snowden but reached the contrary view that the court did not have a discretion to extend the period of time for service of the particulars of claim. He, therefore, concluded that the District Judge's decision was wrong.[5]The facts underlying the appeal in Totty v Snowden are as follows. Miss Totty was severely injured in a road traffic accident on 6th June 1996. On 19th August 1999 her solicitors concluded an agreement with Mr Snowden's solicitors that Mr Snowden was liable to the claimant in respect of 85% of such loss and damage as she might prove. An interim payment of £3,000 followed four days later. On 28th September 1999, the day before Miss Totty's 21st birthday and the expiry of the limitation period, the claim form was issued. In October 1999 there was a brief exchange of correspondence between the solicitors in which Mr Snowden's solicitors made clear that they were not prepared to consent to an order for judgment in proceedings that had not been served. On 26th January 2000, two days before the end of the prescribed period, Miss Totty's solicitors duly served the claim form but, having misunderstood the rules, wrote indicating that it was their intention to serve the particulars of claim with a schedule of loss and supporting medical evidence within 14 days. By the time they did so on 9th February 2000, the fourteenth day after service of the claim form, the period of four months from the issue of the claim form had elapsed and they had failed to comply with rule 7.4(2).[6]The facts relating to Hewitt v Wirral and West Cheshire Community NHS Trust are as follows. Mrs Hewitt alleges that she suffered injury as a result of an incident which occurred on 23rd August 1996 during the course of her employment with the Wirral and West Cheshire Community NHS Trust ("the NHS Trust"). She instructed solicitors to pursue her claim in about June 1999. On 17th August 1999 the solicitors issued a claim form. It had been filled in with little care. That part of the printed form which read "Particulars of Claim (attached) (to follow)" was left with neither of the alternatives deleted. Underneath was typed:
"The claimant claims damages arising from an assault on her by a patient whilst she was employed by the defendant. The assault was the result of the defendant's negligence and/or failure to have sufficient regard for the claimant's safety whilst she was at work."
[7]The Judge concluded that it was clear that the solicitors had intended to serve particulars of claim at a later date and that they had simply failed to delete the word "attached" on the form. It is common ground that the information in the claim form did not contain the full particulars required by Part 16 and the Practice Direction thereto. Following problems due to service on the wrong authority, the claim form came to the attention of the NHS Trust on 8th December 1999. On 16th December 1999 the period for service of the particulars of claim provided by the rules elapsed. On 12th January 2000, no particulars of claim having been served, the defendant applied to set aside service of the claim form.[8]The Civil Procedure Rules 1998. Part 7 provides for service of the claim form and the particulars of claim. Rule 7.5 requires that a claim form (unless it is to be served out of the jurisdiction) must be served "within four months after the date of issue". As already set out above, in each case, there was compliance with this requirement.[9]Rule 7.4 provides for service of particulars of claim. It reads:
"(1)Particulars of claim must- (a) be contained in or served within the claim form; or (b) subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form. (2) Particulars of claim must be served on the defendant no later than the latest time for serving a claim form. (3) Where the claimant serves particulars of claim separately from the claim form in accordance with paragraph (1)(b), he must, within 7 days of service on the defendant, file a copy of the particulars together with the certificate of service."
[10]Rule 7.6 provides for extending time for service of a claim form. The relevant parts read:
"(1) The claimant may apply for an order extending the period within which the claim form may be served. (2) The general rule is that an application to extend the time for service must be made- (a) within the period for serving the claim form specified by rule 7.5; or (b) where an order has been made under this rule within the period for service specified by that order. (3) If the claimant applies for an order to extend the time for service of the claim form after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if- (a) the court has been unable to serve the claim form; or (b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and (c) in either case, the claimant has acted promptly in making the application."
Part 16 contains the requirements for the contents of the claim form and the contents of the particulars of claim. Rule 16.2 requires the claim form to contain a concise statement of the nature of the claim, to specify the remedy which the Claimant seeks and contains such other matters as may be set out in a practice direction. Rule 16.2(2) provides:
"If the particulars of claim specified in rule 16.4 are not contained in, or are not served with the claim form, the Claimant must state on the claim form that the particulars of claim will follow."
[11]The required contents of the particulars of claim are specified by rule 16.4. Such particulars must include a concise statement of the facts on which the claimant relies and also such other matters as may be set out in a practice direction. By paragraph 4 of the practice direction relevant to Part 16, the particulars of claim in a personal injuries claim must contain the claimant's date of birth and brief details of the claimant's personal injuries. The claimant is required to attach to the particulars of claim a schedule of loss and also a report from a medical practitioner about the personal injuries which are alleged in the claim.[12]Rule 16.8 provides that if a claim form has been issued in accordance with rule 7.2 and served in accordance with rule 7.5, the court may make an order that the claim will continue without any other statement of case. Part 3 contains the Court's case management powers. Rule 3.1(2)(a) permits the court to "extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)." This power is, however, subject to the important qualification, "Except where these Rules provide otherwise."[13]Rule 3.10 provides:
"Where there has been an error of procedure such as a failure to comply with a rule or practice direction- (a) the error does not invalidate any step taken in the proceedings unless the court so orders; or (b) the court may make an order to remedy the error."
[14]In interpreting the rules and in exercising any power under the rules, the court is required to give effect to the overriding objective (rule 1.2). The overriding objective is to deal with the case justly, which includes, so far as is practicable, inter alia, saving expense, ensuring that the case is dealt with expeditiously and fairly and "allotting to the case an appropriate share of the court's resources, whilst taking into account the need to allot resources to other cases." Vinos v Marks & Spencer plc[15]The Court of Appeal considered in Vinos v Marks & Spencer plc , unreported, 8th June 2000 the inter-relationship between rule 7.6 and Part 3 of the rules. In that case the claimant's solicitor had failed to serve the claim form until 7 days after the period of 4 months provided by rule 7.5.2 had elapsed. The failure was not related to any difficulty over service and hence the claimant could not seek an extension of time under rule 7.6 after the period for service had elapsed. The contention, on behalf of the claimant was that notwithstanding that there was no possibility of an extension under rule 7.6, the court, having regard to the overriding objective, was nonetheless entitled to exercise its case management powers under Part 3 and that rule 3.10 gave the court a discretion to extend the time for serving the claim from. The Court of Appeal rejected this argument.[16]May LJ, at paragraph 20 of the judgment, explained the reasoning behind the decision:
"The meaning of rule 7.6(3) is plain. The court has power to extend the time for serving the claim form after the period for service has run out `only if' the stipulated conditions are fulfilled. That means the court does not have power to do so otherwise. The discretionary power in the rules to extend time periods - rule 3.1(2)(a) - does not apply because of the introductory words. The general words of rule 3.10 cannot extend to enable the court to do what rule 7.6(3) specifically forbids, nor to extend time when the specific provision of the rules which enables extensions of time specifically does not extend to making this extension of time."
[17]Peter Gibson LJ considered the part that the overriding objective had to play in the matter at paragraph 26 of the judgment:
"The construction of the Civil Procedure Rules, like the construction of any legislation, primary or delegated, requires the application of ordinary canons of construction, though the Civil Procedure Rules, unlike their predecessors, spell out in Part 1 the overriding objective of the new procedural code. The court must give effect to that objective when it exercises any power given to it by the rules or interprets any rule. But the use in rule 1.1(2) of the word `seek' acknowledges that the court can only do what is possible. The language of the rule to be interpreted may be so clear and jussive that the court may not be able to give effect to what it may otherwise consider to be the just way of dealing with the case, though in that context it should not be forgotten that the principal mischiefs which the Civil Procedure Rules were intended to counter were excessive costs and delay."
[18]That decision has been followed in a number of other decisions of the Court of Appeal (for example, Kaur v CTP Coil Ltd , unreported, 10th July 2000 and Elmes v Hygrade Food Products plc , unreported 24th January 2001). The absence of a discretion in such matters can lead to very harsh consequences for those who act for claimants and make relatively small mistakes in this regard in the conduct of the litigation, but the cases clearly establish that the court has no discretion to alleviate any such harshness, which in any event arises from a failure to observe the rules.[19]In summary form, the argument advanced by the defendant in each of the cases with which we are concerned was that precisely the same regime as applies to failure to serve a claim form within the prescribed period applies to a failure to serve particulars of claim. In each case the claimant contends that rule 7.6 makes no reference to particulars of claim and hence extension of the time for service of the particulars of claim is not governed by that rule but rather falls to be considered under the discretionary powers contained in Part 3.[20]In Totty v Snowden ,

Judge Grenfell concluded:

"In my judgment, whilst the requirement under Part 7.4(2) is mandatory, there is nothing that cannot be cured through Part 3.1(2)(a). Once the Claim Form has been issued the proceedings have commenced (Part 7.2(1)). Unless there is a provision such as contained within Part 7.6, in my view, the court's management powers apply. In my judgment, the District Judge was correct to apply Part 3.10 to put right the claimant's solicitor's error and plainly exercised his discretion in accordance with the merits of the case and a correct application of Part 3.9 (relief from sanctions)."
[21]In Hewitt v Wirrall and West Cheshire Community NHS Trust , Judge Marshall Evans explained his decision, which was to the opposite effect. (It is judgment page seven):
"I, with some reluctance, agree with [counsel for the defendant's] submission that it is clear from the rules: (a) that the Particulars of Claim are an essential part of the Claim Form; (b) that if the Particulars of Claim are not contained within the Claim Form or served separately in accordance with the rules the Claim Form is: (i) defective (ii) has not been properly served, and (iii) proceedings brought under the Claim Form have not been perfected; and (c) that if the mandatory requirement of service of the Particulars of Claim within the prescribed time limit is not met the validity of the Claim Form will lapse on the expiry of 4 months and the Claimant must issue a further Claim Form. If this were not the case there would be no sanction against a Claimant who fails to comply with Part 7.4 and Part 16."
[22]At page 8 of the judgment, he continued:
"But it does appear to me, and I conclude and hold (contrary to the judgment below) that this is one of the relatively few cases in which the CPR are utterly mandatory and prescriptive."
[23]The defendant in each appeal submits that the approach of Judge Marshall Evans was the correct one. They support the contention that the particulars of claim are an integral part of the claim form and submit that for a claim to be commenced properly the particulars must be served otherwise the claim lapses. Hence the strict regime for claim forms is just as applicable to particulars of claim.[24]Mr Pearce-Higgins QC on behalf of Mr Snowden, draws attention to the fact that, unlike the old procedure, a defendant is not required to acknowledge service on receipt of the claim form and need take no step until the particulars of claim are served. He submits that this is an indication that the Rules treat the particulars of claim as a part of the claim form and until the particulars are served the defendant can treat the claim form as if it had not been served.[25]He further submits that the clear intent of the Rules is that the claimant should not delay unnecessarily and against that background it is not surprising that the same strict regime should apply as for service of the claim form. He argues that to have a different approach to the particulars of claim would lead to uncertainty and potential delay, and that it would not be clear what the approach of the court should be when called upon to exercise its discretion.[26]Mr Browne QC on behalf of the NHS Trust questioned what the purpose of including rule 7.4(2) was unless it was to bring service of the particulars of claim within the ambit of rule 7.6. The advancing of the mandatory time limit on service for the particulars of claim by a matter of days is of little significance unless it carries with it the sanction that failure to comply will effectively bring an end to the proceedings.[27]Mr Harrison QC on behalf of each claimant not unnaturally submits that the approach of Judge Grenfell is the correct one.[28]He placed reliance upon the decision of this court in Austin v Newcastle Chronical & Journal [2001] EWCA Civ 834 . In that case the court had considered a case where a claim form had been served within the four month period but the particulars of claim had been served outside that period. The court proceeded on the basis that rule 7.6 did not apply. However, on closer examination Mr Harrison acknowledged that the point taken in this case did not appear to have been considered in the earlier case, and it seems that counsel and the court approached the matter on the basis that the sole issue was whether time should be extended under Part 3. Mr Harrison, therefore, accepted that the case could not bind this court but he is, at least, able to point out that it appears that the interpretation suggested by the defendants does not even seem to have occurred to the court.[29]Mr Harrison argues that there is no reason to read into Rule 7 an implication that rule 7.6(3) applies to the particulars of claim as well as the claim form. It would, if it had been intended that that should be the case, have been simple for the rule to have made specific reference to the particulars of claim. The absence of any such express provision is consistent with an intention that the service of the claim form should be subject to the very strict rule about late service but that late service of particulars of claim were to be dealt with under the general discretionary powers contained in Part 3.[30]Mr Harrison submits that if rule 7.6 governs service of the particulars of claim, it leads to absurd consequences. The most stark of these is that if rule 7.6 applies to particulars of claim, it follows that rule 3.1.2 does not since "the rules would provide otherwise". Hence it would not be possible to make an application for the exercise of the court's case management powers to extend the time for service of the particulars of claim. Rule 7.6 makes no provision for an application to extend the period for service of the particulars of claim. Thus the only course open to a claimant who had served the claim form but required extra time to serve the particulars of claim would be to apply under rule 7.6(1) to extend the time for service of the claim form. However, the claim form would already have been served. Conclusions.[31]It was first necessary to look at the provisions of Rule 7.6 in a little detail. Rule 7.6(1) permits an application to extend the time for service of the claim form. That provision would be wholly unnecessary were it not for the provisions of rule 7.6(3), since otherwise the general discretionary powers contained within Part 3 would apply. Thus those responsible for drafting the rules were singling out the claim form for exceptional treatment. Unless the particulars of claim can properly be viewed as an integral part of the claim form, it is a valid argument that it is surprising that if it was intended that this exceptionally strict provision was to apply to the claim form and to the particulars of claim, there was no express reference to the particulars of claim in the rule and that such inclusion was left to be inferred from the rest of Part 7.[32]I do not except that the particulars of claim are an integral part of the claim form. Rule 7.4 makes it quite clear that the particulars of claim are treated as a separate part of the documentation normally required to commence a claim. There would be no purpose in making provision for the possible service of the claim form so an earlier time than the particulars of claim if the particulars of claim were an essential part of the claim form. So that the latter was of no effect without the particulars of claim. Thus I cannot accept the conclusion of Judge Marshall Evans that the claim is "defective" until the particulars of claim are served or that the claim form "has not properly been served". Rule 16.8 would seem to support this view since it permits the court, in an appropriate case, to order that a claim can proceed without any other statement of case once a claim form has been served under rule 7.5.[33]Thus in order to justify the interpretation for which the defendants contend, it would be necessary, since there are no express words to that effect, to conclude that the provisions of rule 7.4, and particularly rule 7.4(2), clearly imply that rule 7.6 is to apply to the particulars of claim as well as to the claim form.[34]Rule 1 requires the court to have regard to the overriding objective in interpreting the rules. Where there are clear express words, as pointed out by Peter Gibson LJ in Vinos v Marks & Spencer , the court cannot use the overriding objective "to give effect to what it may otherwise consider to be the just way of dealing with the case". Where there are no express words, the court is bound to look at which interpretation would better reflect the overriding objective. If the interpretation sought by the defendants is right, there may well be situations in which the consequences of a relatively minor fault may result in very severe consequences for the person at fault. There may be good reasons why those consequences should follow, but it has to be appreciated that the argument advanced by the claimants does not mean they will be ignored. If the court does have a discretion, the circumstances of the failure will fall to be considered by the court when it considers whether to exercise its discretion since discretion must be exercised having regard to the overriding objective.[35]Further, I think that there is merit in the argument advanced by Mr Harrison as to the consequence, that he characterised as absurd, namely that since there is no power to extend the time for service of the particulars of claim after service of the claim form, a claimant would have to apply to extend the time for service of the claim form even though the claim form had been validly served.[36]The one argument advanced by the defendants that has caused me to hesitate in my conclusion is that if rule 7.4 does not have the sanction of the regime under rule 7.6, rule 7.4(2) has very little effect. However, on reflection, if the claimants are right, rule 7.4(2) does have effect. In other circumstances, a person who has served his claim form has a period of 14 further days in which to serve the particulars of claim as of right, i.e. without the need to seek the exercise of the court's discretion. The effect of rule 7.4(2) is that the claimant who chooses not to serve the claim form until the period for service has all but elapsed, loses such part of that absolute right as takes the total period beyond the prescribed limit, and is left to rely on the exercise of the court's discretion if he wishes to extend that period. That discretion will involve considering the overriding objective, which includes ensuring that the case is dealt with expeditiously. The consideration will, therefore, start from the position that the claimant will not have complied with the requirement of rule 7.4 and this will be a factor to be taken into account.[37]If the claimants are right in their interpretation, I consider that there is a perfectly sensible reason why a distinction could be drawn between service of the claim form and service of the particulars of claim. Until the claim form is served, the defendant may be wholly unaware of the proceedings. He may, therefore, because of his ignorance, be deprived of the opportunity to take any steps to advance the case. The same would not be true if the claim form had been served but the particulars of claim were outstanding. In such circumstances, it would be open to a defendant either to seek an order for immediate delivery of the particulars of claim or, if it was justified, to seek to strike out the claim. Thus a very strict regime in relation to the claim form and a discretionary regime subject to the overriding objective is a perfectly sensible approach to the differing problems raised by the two types of failure to comply with the rules as to service.[38]For these reasons, I have come to the conclusion that there is no justification for concluding, in the absence of express words to that effect, that the particulars of claim come within the provisions of rule 7.6 by implication. Thus, I am satisfied that the court does have a discretion to extend time in circumstances such as those in this case.[39]In Totty v Snowden it follows that I am satisfied that Judge Grenfell was entitled to conclude that the District Judge had a discretion. There is no appeal against the exercise of that discretion, if it exists, and accordingly in that case I would simply dismiss the appeal.[40]In Hewitt v Wirral and West Cheshire Community NHS Trust I consider that Judge Marshall Evans was wrong to rule that the court had no discretion to allow an extension of time for service of the particulars of claim. The Judge did not go on and consider how he would have exercised his discretion if he had concluded that he had such a discretion. The appeal to the Judge pre-dated current appeal rules and was, therefore, by way of re-hearing. Both parties would wish to place before the Judge further evidence relevant to the exercise of his discretion and have accordingly agreed that the correct course, if the appeal is allowed, is for the case to be remitted to the Liverpool County Court for consideration of the exercise of the court's discretion. In these circumstances, I agree this would be the appropriate course and I would, therefore, allow the appeal and remit case to the Liverpool County Court.

LORD JUSTICE CHADWICK: I agree.

[42]The short point raised by these appeals is whether CPR 7.4(2) has the effect of abrogating the powers conferred on the court by CPR 3.1(2) in a case where a claimant has issued a claim form, and has served that claim form within the period of four months after the date of issue (as required by CPR 7.5(2)), but has not served the particulars of claim before the end of that four month period.[43]If CPR 7.4(2) is to have the effect contended for, it must be because the sub-rule in some way incorporates, in relation to an application to extend time for serving particulars of claim, the regime applicable to extensions of time for the service of the claim form itself set out in CPR 7.6. In particular, it must be because CPR 7.4(2) incorporates, in relation to an application to extend time for serving particulars of claim in circumstances where the particulars have not been served within the period of four months from the issue of the claim form, the restrictions on the grant of extension of time for the service of the claim form which are set out in CPR 7.6(3).[44]In my view CPR 7.4(2) does not have that effect. There are, to my mind, three reasons which compel that conclusion. First, there is no express provision in CPR 7.4, or in CPR 7.6, which applies the limitation in CPR 7.6(3) to an application to extend time for the service of particulars of claim. The consequence of the application of CPR 7.6(3) would be so draconian that I would expect provision there to be an express to that effect if that consequence were intended. It is, after all, pertinent to have in mind that CPR 3.1(2) begins with the words:
"Except where these rules provide otherwise, the court may- (a) extend the time for compliance with any law."
[45]If the Civil Procedure Rules are to "provide otherwise"in relation to the time for service of particulars of claim, I would expect them to do so in clear and express terms;as they do in relation to the time for service of the form itself.[46]Second, in order to achieve the effect contended for, it is necessary to do substantial violence to the language line of CPR 7.6. CPR 7.6 provides a regime under which a claimant may apply for an order extending the period in which the claim form may be served. In the situation in which the claim form has been served in time, the claimant does not need, or want, an order extending the period within which the claim form may be served. What the claimant wants is an order extending the period within which the particulars of claim may be served. CPR 7.6(1) does not provide for an application for such an order. Further difficulties arise in the application of CPR 7.6(3). Under that sub-rule:
"The court may make an order extending time only if: (a) the court has been unable to serve the claim form; or (b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and (c) in either case the claimant has acted promptly in making the application."
[47]But where the claim form has been served in time but the particulars of claim have not been served in time, neither paragraphs (a) nor (b) of CPR 7.6(3) can be satisfied. And, if neither paragraphs (a) nor (b) can be satisfied, paragraph (c) can have no application. In order to give effect to the contention that CPR 7.6 applies to applications to extend time for the service of particulars of claim, it would be necessary to rewrite that rule extensively further, it would be necessary to rewrite it in such a way that the exyention of the rule applied only where time for serving particulars of claim was to be extended beyond the time limited by CPR 7.5 for serving the claim form. There is no reason at all why CPR 7.6 should apply where all that the claimant wants is an extension of the 14-day period limited by CPR 7.4(1)(b) which was not, itself, taken the time beyond the time limited by CPR 7.5. It is not at all clear to me how the Rules Committee would have dealt with the point, if it had been their intention to do so; and the court should be slow to imply provisions in a rule, which are not there in express terms, which it can see, with a high degree of certainty, what the implied provisions should be.[48]Third, there is no compelling reason of policy why the court should interpret CPR 7.4(2) and CPR 7.6 in order to cover a situation to which, on their terms, they are plainly not addressed. As Kay LJ, has pointed out, there is a clear rationale for the provisions of CPR 7.6 in relation to the service of the claim form itself. There is no comparable rationale in relation to the service of particulars of claim, in circumstances in which the claim form has itself been served. There is no reason why that situation should not be left to be dealt with, as a matter of discretion, in the exercise of the powers conferred by CPR 3.1(2)(a), having regard to the overriding objective. Once the claim form itself has been served, the defendant will know that there is a claim against him he will be in a position to invoke the assistance of the court if particulars of claim are not forthcoming within due time.[49]For these reasons, and for the reasons given by Kay LJ, I agree with the orders which he has proposed.

LORD JUSTICE PETER GIBSON: I agree with both judgments.

Order

In Totty v Snowden appeal dismissed with costs and in Hewitt v Wirral and West Cheshire Community NHS Trust , appeal allowed with costs, subject to detailed and Legal Services Commission assessment.

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