COULD RULE 3.10 PROVIDE A DEFENCE IF YOU FAIL TO COMPLY WITH A COURT ORDER

In the a recent case of  Integral Petroleum v SCU-Finanz AG[2014] EWHC 702  the scope of r.3.10 was explored by Popplewell J.

In Integral the parties agreed an extension of time by e-mail for the service of the Particulars of Claim by 28 days to 6^th June (in fact 28 days would have given until 10^th June). The Particulars were served by e-mail at 18.41 on 10^th June and to all intents and purposes were deemed to be served out of time.   No Defence was filed and the Claimant obtained judgment in default. The Defendants challenged the validity of the Claimant's service on the grounds that service by e-mail was not the  agreed method of service and, service was late. 

Justice Popplewell  considered the Claimant's application in light of  Rule 3.10  which grants General power to the court to rectify matters where there has been an error of procedure

The rules are set out as follows:-

3.10 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; and

(b) the court may make an order to remedy the error

Justice Popplewell decided that the error of procedure in serving the Particulars of Claim by e-mail was a failure to comply with a rule or practice direction which fell within r. 3.10. Accordingly under r. 3.10(a) such service was a step which was to be treated as valid:

• He considered that the rule was to be construed as of wide effect so as to be available to be used beneficially wherever the defect has had no prejudicial effect on the other party. The method of service was recognised but the formalities necessary to make it a permitted method had not been concluded.
• He drew a distinction between service of the originating process and service of Particulars of Claim and thought a narrower approach to r. 3.10 should be taken when dealing with the originating process.
• He stated that Rule 3.10 was particularly apposite for treating as valid a step whose whole function was to bring a document to the attention of the opposing party where such function has been fulfilled - he said “It prevents a triumph of form over substance”.
• The judge also found that the rule applied in relation to service of the Particulars of Claim 5 days out of time.

Justice Popplewell therefore set aside the judgment under R13.3.

Rule 13.3 . deals with Cases where the court may set aside or vary judgment entered under Part 12

Under Rule 13.3

(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

(Rule 3.1(3) provides that the court may attach conditions when it makes an order) 

So it may be worth considering referring to Rule 3.10  when you next find yourself in trouble with deadlines, procedural formalities etc. Watch this space because it looks like caselaw on this rule is likely to develop

This article is for information purposes only