Charlotte Buck, pupil barrister, outlines the procedural practice points arising out of the recent Court of Appeal decision in Bali v 1-2 Couriers Limited (1) & Walsingham Motor Insurance (2) [2025] EWCA Civ 1413.
Most litigators will be aware of the strict 4-month deadline for service of a claim form within jurisdiction, and how if you miss it without taking protective action, your claim is usually barred. The Court of Appeal’s decision in Bali offers a stark reminder of what it actually means for a claim form to be “issued,” and what action must be taken once that point is reached.
Background: A Claim Lost in the System?
The Claimant was injured in a road traffic accident on 2 December 2019. Her solicitors were instructed late but managed to lodge a claim form and a Help with Fees (HwF) application on the final day of limitation in December 2022.
Then matters deteriorated.
Extended periods of silence followed by extraordinarily little communication between the solicitors and the court. Nothing progressed until 12 December 2023, when the court processed a payment for the court fee. The solicitors then received confirmation of the payment and the claim was allocated a case number.
And then… nothing. The claim form (for some unknown reason) sat in the court system, unnoticed and unsent, until 2 April 2024, when it was finally posted. The solicitors received it on 15 April 2024, and it was then that they noticed the date stamped on the claim form was 13 December 2023. They were two days past the deadline for service.
Despite knowing there had been prolonged delays, the Claimant’s solicitors had not chased the court with any real urgency. They did not apply for an extension before the deadline for service expired. They did not take the necessary steps to find out whether the claim form had been sealed. They waited until after time had expired and then sought relief from sanctions under CPR 3.9 which does not apply to failure to serve a claim form in time. Only in November 2024 did they amend that application to include CPR 7.6.
The Defendant applied under CPR 11 for a declaration from the court denying jurisdiction and striking the claim out. DDJ Lenon KC at first instance granted the Defendant’s application and struck out the claim. Permission to appeal was granted on 4 February 2025.
Grounds of Appeal
Three grounds of appeal were advanced:
- The Judge erred in his finding that the date of the seal on the claim form was conclusive of the date of issue of the claim form;
- The Judge erred in his factual finding that the sealed claim form was not served in time; and
- Alternatively, the Judge was wrong to refuse the Appellant’s applications for an extension of time for service and for relief from sanctions.
In support of these grounds, the following submissions were raised.
Issues 1 & 2 – What does “issued” mean?
Counsel for the Claimant/Appellant argued that “issue” is undefined in the CPR and therefore should carry its ordinary English meaning: the act of supplying or distributing something. On this interpretation, a claim form is not “issued” until it is sent out. Since the form was not despatched until April 2024, that was the true date of issue.
The Court of Appeal firmly rejected this stating that ‘it flies in the face of the clear language’ of CPR 7.2.2(2).
Whilst the acts of sealing and issue may be conceptually distinct, they occur simultaneously. Sealing is completed on issue. The stamp provides certainty. Proceedings start when the court seals the form, not when it posts it.
The Appellant relied on Walton v Pickerings Solicitors [2023] but this backfired. As noted by Lady Justice Andrews ‘the reasoning underpinning the decision in Walton was to treat issue and sealing as acts which cannot occur on different dates.” (§28) There is nothing in Walton to suggest that issue depends on despatch.
Importantly, Andrews LJ in her judgment considered the practical implications of the Appellant’s primary submission succeeding and its unwelcome consequences. If, as argued by the Appellant, the correct date for issue was the date of despatch it would give rise to significant factual disputes about when the claim form was sent out. It would undermine procedural certainty. The rules are designed to avoid precisely that.
In an alternative submission, the Appellant argued the Judge was wrong to treat the date stamped on the claim form as determinative of the date of issue on the facts of the case. The Judge had erred when concluding that there was “no evidence” that the claim form had been backdated. The court again rejected this. The point at which the contribution fee was processed and a claim number assigned was the moment when all preconditions for issue were met. Considering all the factors, it was likely that the claim form was sealed on 13 December 2023.
Issue 3 – Should time for service have been extended?
The Appellant argued that the Judge was wrong to criticise the solicitors’ conduct before the form was sealed, since no one can serve an unsealed claim form.
Again, the Court of Appeal disagreed.
Once all obstacles to issue had been removed, a foreseeable risk arose that the sealed claim form might arrive too late for timely service. This risk increased every day that passed without sight of the form. A reasonable solicitor would check whether it had been issued, sent out, and when it was likely to arrive.
The fact that the sealed form only reached the solicitors after the CPR 7.5 deadline was relevant to the judge’s discretion but not determinative. It did not prevent the court from examining how the situation came about.
Here, the solicitors should have been far more proactive. Assuming that receiving the claim form in April meant the form had only just been issued was, as the Court put it, a “dangerous” assumption. (§57)
There was nothing “Kafka-esque” about expecting solicitors to check on the status of a claim that was ready for issue. (§57)
Decision and Practice Points
The appeal was dismissed. A key takeaway from this case is that once the pre-conditions for service have been met, solicitors must actively monitor the court’s progress and proactively chase. The procedural rule governing service is strictly enforced.
Charlotte Buck, pupil barrister
The Respondent was represented by Daniel Tobin of 12 King’s Bench Walk instructed by Dan Mitchell of DWF Law LLP.
