Posted by: RM | May 23, 2023

Rectifying Errors: CPR 3.10

CPR 3.10, “general power of the court to rectify matters where there has been an error of procedure“, provides:

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.

The question what powers of rectification are conferred upon the court by CPR 3.10 was recently considered in Jennison v Jennison [2022] EWCA Civ 1682 (“Jennison“) and the answer has resolved an inconsistency between two High Court authorities, Meerza v Al Baho [2015] EWHC 3154 (Ch) (“Meerza“) and Kimathi v Foreign and Commonwealth Office (No 2) [2017] EWHC 3005 (QB) (“Kimathi“).

This question was a ‘side issue’ in Jennison which was largely concerned with the standing of a foreign executor to issue proceedings in England and Wales prior to obtaining a grant of probate, or a re-sealed grant, in this jurisdiction. In light of the Court of Appeal’s decision on the main issue it was not necessary to decide the case on this basis. However, Newey LJ, with whom King and Coulson LLJ agreed, concurred with the view expressed by Stewart J in Kimathi that CPR 3.10 is incapable of curing a ‘nullity’. Had the court concluded that the Respondent in Jennison, the foreign executor, lacked standing to bring her claim prior to her obtaining a grant of probate (or re-sealed grant), CPR 3.10 could not have been used to rectify that lack of standing at the outset notwithstanding her having obtained a re-sealed grant before trial because the proceedings would have been a nullity.

In Meerza Peter Smith J concluded, in circumstances where a claimant had failed to take out letters of administration prior to issuing proceedings on behalf of an intestate, that CPR 3.10 was capable of rectifying her lack of standing saying at paragraph [46]:

It seems to me … I have a discretion under CPR 3 to apply the overriding objective to enable cases to be dealt with justly. In particular based on Chadwick LJ’s observations [in Maridive] it seems to me clear that that power can be used to ensure that any technical objections whether procedurally or as a matter of law can be overcome provided it is just to do so. In the present case it is clearly just to acceded to an application to amend to perfect the claim by reason of the grant of letters of administration if that were necessary”.

In Kimathi Stewart J was faced with an application to strike out the claim of one of a number of test claimants on the ground that the claim was a nullity, the claim having been brought in the name of a deceased claimant personally rather than in the name of his personal representative. Stewart J acceded to the application and struck the claim out on the ground that it was a nullity (it being impossible to bring a claim in the name of a deceased person). Given that the facts were not on all fours with Meerza Stewart J distinguished Kimathi. However, he expressed the view that CPR 3.10 was not competent to cure every defect and that any discretion to remedy errors did not extend to reviving a claim that was a nullity.

The Court of Appeal in Jennison agreed with Stewart J and said at paragraph [60] that “… bringing a claim on behalf of an estate by a person who, at the time, lacks standing to represent is is not a mere “error of procedure”, but renders the proceedings a nullity … They are, in the circumstances, “a dead thing into which no life could be infused” (to quote Hodson LJ in Burns v Campbell) … Had, therefore, I considered the claimant to have had no standing when she issued the claim in February 2019, I would have held that CPR 3.10 had no application and that the proceedings had to be struck out“. This conclusion is consistent with the view expressed by Lord Burrows in Jogie v Sealy [2022] UKPC 32.

Any uncertainty that might have existed as a result of the decision in Meerza has now been firmly put out to grass. There can be no lingering doubt that proceedings which are a nullity are incapable of revival by the exercise of judicial discretion.

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