Thursday Law Report 29 April 1999: Court's power to correct error in writ

Riniker v University College London Court of Appeal (Lord Justice Evans, Lord Justice Schiemann and Lord Justice Clarke) 31 March 1999

THE COURT had power under the inherent jurisdiction to order that a writ which, owing to an error on the part of a court official, had not been issued on the correct date should be deemed to have been issued on the correct date.

The Court of Appeal allowed the appeal of Ursula Riniker against the refusal of her application that the date on a writ issued by her be changed.

The plaintiff wished to commence proceedings claiming damages against the defendant. She was aware that the limitation period for some of her claims might expire on 5 August 1998 and was concerned to issue proceedings before that date as a holding measure.

She drafted her claim herself and attended at the writ office, where she was told that it was in suitable terms to be endorsed on a writ. She therefore posted a draft writ with the appropriate fee to the Action Department, which received it on 28 July 1998. In her letter she asked that the writ be issued immediately on the day of receipt.

The draft endorsement ran to 11/2 pages of typescript, and the clerk in the writ section thought that it was intended to be or should be regarded as the Statement of Claim. The draft writ and cheque were returned to the plaintiff, with the comment, "Your writ must be headed up Statement of Claim." The plaintiff did not receive them until 9 August.

The next day she returned the writ, explaining the error and asking that it be issued immediately with the date of issue 28 July 1998, i.e. the day the department had first received it. The writ was issued with the date 14 August. The plaintiff complained, but the senior master felt unable to change the issue date. The plaintiff's application for an order of the court enabling the writ to be treated as if it had been issued on the earlier date was refused, the judge holding that he was bound by the decision in Harrison v Touche Ross (Times, 14 February 1995). The plaintiff appealed.

The plaintiff appeared in person; Paul Epstein (Wilde Sapte) for the defendant.

Lord Justice Evans said that in the present case, the draft writ had been in custody of a proper officer of the court on 28 July and it was now accepted that the endorsement was in proper form. In those circumstances, the issue of the writ could not be refused, and the the writ could and should have been issued then. The failure to do so was entirely the responsibility of the official in the Action Department.

The court did have power to make the kind of direction sought by the plaintiff. That power should be ascribed to the inherent jurisdiction of the court rather than to the specific authority given by Order 2 rule 1 of the Rules of the Supreme Court, although the closing words of Order 2 rule 1(2) were wide enough to give that power unless rule 1(1) were interpreted narrowly as applying only to failures by the parties and not by the court.

In that case, however, the possibility of error for which the court was responsible was left to its inherent jurisdiction to remedy. The inherent jurisdiction was reflected in the pre-1965 practice described by Stamp J in Re N (infants) [1967] 1 All ER 161, and it continued, in suitably limited circumstances, today.

It had been submitted for the defendant that, if the court had jurisdiction to make an order in the plaintiff's favour, it should not exercise that power, since she had delayed issuing proceedings until the very end of the six-year period, of which she was well aware. She had taken the risk, by using the postal procedure, that something might go wrong.

However, there was no reason why the plaintiff should be punished for the error of an officer of the court. Accordingly, the writ, although issued and dated 14 August, should be deemed for all purposes to have been issued on 28 July 1998.