Rahilu Mohamed Khan v Standard Chartered Bank (k) Ltd. & 1 other

The respondents argued that an affidavit of service was the best evidence of service of the bespeaking letter, so time could not be excluded under the proviso to rule 81. The court held that its rules do not impose any requirement of service of that letter on the respondent; rule 81(2) merely requires that the copy be sent to the respondent. The court declined to read additional requirements into the rules.

The court reasoned that it is the third party notice, not the application for leave to issue it, that sets out the defendant's claim against the third party, as shown by Order 1 rules 14(3) and 16 of the Civil Procedure Rules and the commentary in the Supreme Court Practice. The notice institutes a suit between defendant and third party and is therefore a pleading; the application for leave is not.

Relying on Hodson L.J.'s remarks in Warner v. Sampson, the court accepted that once a plaint is amended, the amended plaint defines the plaintiff's case. However, the original plaint still forms part of the lower court record and, unless a Judge or Registrar directs its exclusion under rule 85(3), it must be included in the record of appeal. Its omission therefore breached rule 85(1)(c).

Although the court dismissed the respondents' applications, it exercised its own power to strike out the appeal because primary documents mandatory under rule 85(1)(c) were missing from the record. The defect was held to be incurable, and the appeal was struck out with no order as to costs.