Rule 3.10 rescues parties where “there has been an error of procedure such as a failure to comply with a rule or practice direction”. Where it applies “the error does not invalidate any step taken in the proceedings unless the court so orders”. The question therefore is when an error is merely an error of procedure and when it is such an error that it is irremediable.

In Isaac Stoute v LTA Operations Ltd [2014] EWCA Civ 657 the Court of Appeal looked at this question in the context of failed service. Is service of the claim form by the court in disregard of a claimant’s notification that he wished to effect service himself (1) a nullity and (2) ‘an error of procedure’ within r. 3.10?

The problem in this case was that the claimant had notified the Court that his solicitors wished to serve the claim form. Rule 6.4(1) states that the Court will serve the claim form except where the claimant notifies the Court he wishes to serve it. It was argued that service by the Court must therefore have been a nullity which rule 3.10 could not rescue.

The Court of Appeal found that service by the court (in error) was not a nullity and was an error of procedure within r.3.10. Underhill L.J. held that there was nothing contrary to the fundamental scheme of the Rules, or radically unfair to the parties, in allowing service to stand. The Court had wrongly effected service – but Court service itself was provided for by the rules. There was no prejudice to the defendant who would not have even known that service was irregular when it was effected.

It was objected by the defendant that rule 7.6 applied (making provision for extending time for service of the claim form) and that rule 3.10 was just a way of getting round this. The Court of Appeal found that rule 7.6 applied to cases where service had not been effected within the period allowed by rule 7.5. Rule 3.10 could be relied upon to establish that service had been effected, albeit by the wrong person.

I blogged recently on service and rule 3.10 (‘Rule 3.10: looking beyond 3.9 for relief’, 21st March 2014). My posting concerned the case of Integral Petroleum v SCU-Finanz AG [2014] EWHC 702 (Comm). That case involved rule 3.10 and the time for serving Particulars of Claim. The judge in that case 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.” However he thought that a narrower approach to r. 3.10 should be taken when dealing with the originating process. The decision in the case of Stoute suggests that the approach is not narrower than the approach the judge took to the Particulars of Claim in Integral Petroleum.

One issue which arises frequently in cases at the moment is whether an application for relief from sanctions to be made where there has been a breach of a court order, rule or practice direction but there is no automatic sanction prescribed. Rule 3.10 may often be the answer.