DELAYING SERVICE OF THE CLAIM FORM: “DICING WITH PROCEDURAL DEATH”: ANOTHER EXAMPLE OF A CLAIMANT BUILDING PROBLEMS FOR ITSELF

There are real dangers in leaving service of the claim form until the last moment. The Lincolnshire case considered here exemplifies the problems.   . The judge pulled no punches in relation to the risks being run by those who fail to serve promptly and properly.  The case further highlights the dangers of making, and relying on, without notice applications to extend time.  The case law is clear: a party cannot rely on a without notice order as providing security or “false expectations”. Although this is a cast that cites Mitchell these are not principles that would be affected by Denton. The law relating to extensions of time for service of the claim form remains extremely strict and, on the whole, is not governed by CPR 3.9.

THE CASE

LINCOLNSHIRE COUNTY COUNCIL V MOUCHEL BUSINESS SERVICES LIMITED AND R.G. CARTER BUILDING SERVICES LIMITED [2014] EWHC 352(TCC). Mr Justice Stuart-Smith (available on Bailli).

KEY POINTS

  • It is extremely unwise to make an application for an extension to serve the Claim Form without notice. Have a case ready, including the Particulars of Claim and additional evidence, prior to issuing proceedings.
  •  The relevant Pre-Action Protocols are important. Know when they apply and what they require.
  • Arguments that the Pre-Action Protocol has not been complied with and that it may lead to increased costs without an extension are not good arguments which justify an order extending time to serve the Claim Form.
  • Do not issue proceedings, or make applications at the last minute. A court is unlikely to be sympathetic when things go wrong.

THE ISSUE IN A NUTSHELL

This is set out clearly in paragraph 1 of  the judgment.

“Where a party issues protective proceedings hard up against the expiry of the limitation period, it is expected to pursue those proceedings promptly and effectively; and if it subsequently seeks and obtains orders extending time for the service of the Claim Form or Particulars of Claim without notice to the other party, it dices with procedural death.  These simple propositions should be known to all professionals conducting litigation.  They were established long before the recent reforms of the Civil Procedure Rules.” 

THE FACTS

Proceedings were issued in July 2013 in a construction dispute bristling with

limitation issues.

  • The claimant  issued an application for an extension of time for service  of the claim for to the 18th January 2014.
  • The reasons given by the claimant was that an extension of time for service of the claim form and particulars of Claim was necessary to enable the parties to take the steps set out in the Protocol.
  • On the 23rd July 2013 an order was made requiring the claimant to comply with the protocol and serve proceedings by the 18th January 2014.
  • The claimant failed to take any steps to advance the case between July and September. It became clear that the parties would not be able to comply with the protocol by the 18th January.
  • The claimant made a second application on the 23rd December 2013 asking for a further extension to serve proceedings. The defendants were not notice of the application.
  • On the 15th January 2014 the court granted a further extension to the 18th April 2014.
  • The defendants then made an application to set aside the without notice application.

THE RELEVANT PRINCIPLES RELATING TO SERVICE

Mr Justice Stuart-Smith began by outlining the principles to be applied in the application

The CPR state that a Claim Form must be served before 12.00 midnight on the calendar day four months after the date of issue of the Claim Form: CPR 7.5(1).  Particulars of Claim must be served on the defendant no later than the latest time for serving a Claim Form and, subject to that, must be served with the Claim Form or within 14 days after service of the Claim Form: CPR 7.4(1) and (2).  The Claimant may apply for an extension of time for serving the Claim Form.  Such an application must generally be made before the expiry of the four month period set by CPR 7.5(1); it must be supported by evidence and may be made without notice: CPR 7.6 (1), (2) and (4).  If an extension of time is granted for service of the Claim Form, that will have the effect of extending the latest time for service of the Particulars of Claim.  This case does not concern a separate application for an extension of time for service of the Particulars of Claim.  It is therefore sufficient to note in passing that there is no provision equivalent to CPR 7.6(4) allowing applications for extensions of time for service of the Particulars of Claim to be made without notice.  Applications for extension of time for serving a Claim Form are therefore an exception to the general rule that a copy of the application notice must be served on each respondent: see CPR 23.4(1) and (2).

The Court will expect the parties to have complied with any relevant pre-action protocol and will take any failure to do so into account when exercising its general powers of management, including its power to grant relief from sanctions under CPR 3.9: see CPR 3.1(4) and (5) and the Pre-Action Conduct Practice Direction at 4.1 and 4.2.  The Pre-Action Protocol for Construction & Engineering Disputes applies and the following provisions are of prime relevance to the present case:

The objectives of the Protocol are (i) encouraging the exchange of early and full information about the prospective legal claim, (ii) enabling the parties to avoid litigation by agreeing a settlement of the claim before the commencement of proceedings, and (iii) supporting the efficient management of proceedings where litigation cannot be avoided: see [1.3];

In all cases the costs incurred at the Protocol stage should be proportionate to the complexity of the case and the amount of money which is at stake: see [1.5];

Within 28 days from the date of receipt of the letter of claim, or such other period as the parties may reasonably agree (up to a maximum of 3 months), the defendant shall send a letter of response to the claimant.  Within 28 days after receipt by the claimant of that letter, the parties should normally meet to agree the main issues in the case and, if possible, to resolve some or all of them: see [4.3.1], [5.1] and [5.2];

“If by reason of complying with any part of this protocol a claimant’s claim may be time-barred … the claimant may commence proceedings without complying with this Protocol.  In such circumstances, a claimant who commences proceedings without complying with all, or any part, of this Protocol must apply to the court on notice for directions as to the timetable and form of procedure to be adopted, at the same time as he requests the court to issue proceedings.  The court will consider whether to order a stay of the whole or part of the proceedings pending compliance with this Protocol.”: see [6]

The TCC Court Guide reflects the flexible framework within which litigation in the TCC is habitually conducted: see [1.1.2] of the Guide. It is not a substitute for the CPR and parties and their advisors are expected to familiarise themselves with the CPR and, in particular, to understand the importance of the “overriding objective of the CPR”: see [1.1.4] of the Guide.  [2.3.2] of the Guide mirrors [6] of the Protocol, including the mandatory requirement that a claimant who does not comply with the Protocol because his claim may become time-barred must apply for directions as to the timetable and form of procedure to be used.  It does not state that such an application must be made on notice, but that does not detract from the requirement in the Protocol that it should be.

Accordingly, while an application for an extension of time for serving the Claim Form may be made without notice pursuant to CPR 7.6, a party issuing proceedings to which the Pre-Action Protocol for Construction & Engineering Disputes applies without complying with the Protocol because his claim may become time barred is obliged by [6] of the Protocol to apply to the Court on notice for directions as to the timetable and form of procedure to be adopted.  There are (at least) two obvious rationales for this separate requirement.  First, an application for directions on notice enables the Court to review the position in the light of any relevant submissions made by each affected party.  This promotes the overriding objective of the CPR by providing the Court with full information on which to make its case management decision and ensures a level playing field from the outset.  Second, if the order is made without notice, there is always the risk that one or more affected parties will apply to set the order aside as has happened in this case.  The requirement that the initial order for directions is made on notice thus removes the risk of further costly and time-consuming satellite litigation.”

THE CHANGES IN THE CPR AND THE COURTS APPROACH TO LITIGATION

He then went on to consider the changes in civil procedure which had occurred

The amendments to the CPR that heralded a new and more robust approach to case management are, or should be, well known to any lawyer undertaking litigation since their introduction.  From an early stage, the Courts have endorsed the adoption of the more robust approach by reference to the addition of CPR 1.1(2)(f) and, where appropriate, to the amendment of CPR 3.9; and they have done so specifically in relation to extensions of time for the service of a Claim Form: see Venulum Property Investments v Space Architecture & Others [2013] EWHC 1242 (TCC) at [54].  The approach reflects the view expressed in [6.5] of the Jackson Report and endorsed by the Court of Appeal even before the amendments to the CPR were introduced in Fred Perry v Brands Plaza Trading [2012] EWCA Civ 224:

“… courts at all levels have become too tolerant of delays and non-compliance with orders.  In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system.  The balance therefore needs to be redressed.”

Even under the earlier, more tolerant, regime there was clear authority on how the Court should exercise its undoubted discretion where parties issue proceedings late.  In Hashtroodi v Hancock [2004] 1 WLR 3206 the Court of Appeal declined to provide a check-list of factors that would determine whether or not an extension of time should be granted; but, at [19] it explained that:

“If there is a very good reason for the failure to serve the claim form within the specified period, then an extension of time will usually be granted.  Thus, where the court has been unable to serve the claim form or the claimant has taken all reasonable steps to serve the claim form, but has been unable to do so … the court will have no difficulty in deciding that there is a very good reason for the failure to serve.  The weaker the reason the more likely the court will be to refuse to grant the extension.

At [34] the Court gave a clear warning:

“It has often been said that a solicitor who leaves the issue of a claim form almost until the expiry of the limitation period, and then leaves service of the claim form until the expiry of the period of service is imminent courts disaster.”

In Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806 the Court of Appeal gave a warning that was equally unambiguous at [50]:

“Thus if a claimant applies for and obtains an extension of time for service of the claim form without giving notice to the defendant, he does so at his peril.  He should know that an order obtained in such circumstances may be set aside.  He can take no comfort from the fact that the court has made the order.  He cannot be heard subsequently to say that it was the court’s fault that the order was made.”

In Hashtroodi’s case at [18] the Court of Appeal cited with approval a passage from Zuckerman’s Civil Procedure where the author pointed out that “whether the limitation period has expired is also of considerable importance.  If an extension is sought beyond four months after the expiry of the limitation period, the claimant is effectively asking the court to disturb a defendant who is by now entitled to assume that his rights can no longer be disputed.”  Hoddinott also considered the principles to be applied where questions of limitation may arise.  At [52] the Court said:

Where there is doubt as to whether a claim has become time-barred since the date on which the claim form was issued, it is not appropriate to seek to resolve the issue on an application to extend the time for service or an application to set aside an extension of time for service.  In such a case, the approach of the court should be to regard the fact that an extension of time might “disturb a defendant who is by now entitled to assume that his rights can no longer be disputed” as a matter of “considerable importance” when deciding whether or not to grant an extension of time for service: see Hashtroodi’s case, para. 18.”

The reasons underpinning the Court’s approach where limitation questions may arise were developed in an illuminating judgment by Rix LJ in Aktas v Adepta [2011] QB 894.  At [91] he said:

The reason why failure to serve in time has always been dealt with strictly (even if CPR r 7.6(3) represents a still further tightening of the rules where a retrospective request for an extension is made out of time) is in my judgment bound up with the fact that in England, unlike (all or most) civil law jurisdictions, proceedings are commenced when issued and not when served. However, it is not until service that a defendant has been given proper notice of the proceedings in question. Therefore, the additional time between issue and service is, in a way, an extension of the limitation period. A claimant can issue proceedings on the last day of the limitation period and can still, whatever risks he takes in doing so, enjoy a further four-month period until service, and his proceedings will still be in time. In such a system, it is important therefore that the courts strictly regulate the period granted for service. If it were otherwise, the statutory limitation period could be made elastic at the whim or sloppiness of the claimant or his solicitors. For the same reason, the argument that if late service were not permitted, the claimant would lose his claim, because it would become time-barred, becomes a barren excuse. But even where the claimant is well within the limitation period despite his delay in serving, there is a clear public interest in the rules and the courts curtailing the efficacy of a claim form which, because it has not been served, is not very different from an unposted letter. Therefore, the strictness with which the time for service is supervised has entirely valid public interest underpinnings which are quite separate from the doctrine of abuse of process. It is sufficient for the rules to provide for service within a specified time and for the courts to require claimants to adhere strictly to that time limit or else timeously provide a good reason for some dispensation. There is no need for that procedure to be muddled up with the different doctrine of abuse of process.

If there had been any residual doubt about the approach that will now be adopted when considering applications for extensions of time, it should have been removed by the decision of the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537.  At [40-42] the Court said:

“We hope that it may be useful to give some guidance as to how the new approach should be applied in practice. It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly. The principle “ de minimis non curat lex ” (the law is not concerned with trivial things) applies here as it applies in most areas of the law. Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms. We acknowledge that even the question of whether a default is insignificant may give rise to dispute and therefore to contested applications. But that possibility cannot be entirely excluded from any regime which does not impose rigid rules from which no departure, however minor, is permitted.

 If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue. We should add that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief from sanction made after the event.

A similar approach to that which we have just described has been adopted in relation to applications for an extension to the period of validity of a claim form under CPR 7.6 . In Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 1 WLR 3206, this court said that (i) the discretion to extend time should be exercised in accordance with the overriding objective and (ii) the reason for the failure to serve the claim form in time is highly material. At para 19, the court said:

“If there is a very good reason for the failure to serve the Claim Form within the specified period, then an extension of time will usually be granted…. The weaker the reason, the more likely the court will be to refuse to grant the extension.”

In addition to these statements of principle, there are very many cases illustrating factual circumstances in which the Court either has or has not exercised its discretion in favour of extending the period for service of proceedings.  Although such cases are primarily illustrative, the Court’s wish to achieve consistency in its approach to case management means that they should be taken by practitioners as indicative of the approach that the Court is likely to take in the future.  That being so, the approach of the Court of Appeal to the facts of Leeson v Marsden and another (reported sub nom. Collier v Williams [2006] 1 WLR 1945) is instructive.  It was a clinical negligence claim where the Claimant alleged a negligent failure to diagnose an epidural abscess in late 2000 and brought proceedings against a general practitioner and an NHS Trust.  Letters of Claim were sent in August 2002.  The Trust did not reply for a year and the general practitioner did not reply at all.  The Claim Form was issued on 24 November 2003.  In February 2004, the Claimant’s solicitors asked the Defendants to agree to a six months extension of time for service of the proceedings.  The Trust agreed to extend time by three months.  The doctor’s solicitor agreed to an extension of time for the service of the particular of claim, medical report and schedule of loss and damage but did not refer to or agree an extension for service of the Claim Form

THE JUDGE’S CONCLUSIONS

There was clear authority that:

(1) The fact that the provisions of the pre-action protocol had not yet been complied with;

(2) There was a prospect that serving proceedings might lead to an increase in costs because of that non compliance

were not good reasons for failing to serve the Claim Form.

SHOULD THE SECOND EXTENSION BE SET ASIDE?

The Judge then went on to consider whether the second extension should be set aside.

Faced with this barrage of authority, Mr Leabeater for Lincolnshire tried to sustain the order extending time; and he did so with tenacity and skill.  He submitted that there is a tension between two separate principles, namely the need to serve proceedings promptly (particularly where limitation issues are in play) on the one hand and the requirements of the Protocol for Construction & Engineering Disputes on the other.  Pointing out, correctly, that there is no other Protocol that includes a provision in (or even approaching) the same terms as [6] of the Protocol for Construction & Engineering Disputes, he submitted that the Protocol and the TCC Guide attach particular importance to giving time for compliance with its terms, with a view to saving costs in the long term.  He argued that the authorities to which I have referred above are not directly in point because none was subject to the Protocol; and he relied upon the decision of Ramsey J in Charles Church Developments Ltd v Stent Foundations Ltd & Peter Dann Ltd [2007] EWHC 855 (TCC) as showing the paramount importance of complying with the protocol in TCC cases.

  1. In Charles Church the Claimant took no steps to comply with the Protocol.  The claim related to three incidents, the earliest of which occurred in August 2000.  The Claimant issued proceedings on 14 February 2006 and served the Claim Form on 8 June 2006.  A CMC was held on 31 October 2006 at which directions were given leading to a stay of proceedings from 13 April to 25 May 2007 for a mediation to take place.  The first Defendant then applied for its costs of the claim up to 13 April 2007 because the Claimant had failed to comply with the pre-action protocol.  Ramsey J held that the first Defendant was “entitled to recover costs to reflect the increased work carried out because of the exchange of information taking  place, not in the lower-cost atmosphere of pre-action protocol procedure, but in the higher-cost of court proceedings.”: see [41].  En route to that decision he said, at [22-23]:

“22 I consider that where, as appears to be the case here, active consideration was being given by CCD, and obviously had been given by February 2006, in relation to a claim against Stent, the TCC pre-action protocol could and should have been commenced prior to any limitation date. While paragraph 6 of the pre-action protocol allows an exception where there are possible limitation dates, it is not there to encourage parties to delay commencement of the TCC pre-action protocol until there are limitation difficulties. Rather, parties should generally commence the pre-action protocol process at an earlier stage.

23 However, whatever the general position, the importance for a party to apply for directions, if proceedings are commenced under paragraph 6 of the TCC pre-action protocol, cannot be over-emphasised. On such an application, the court would usually stay proceedings so that the pre-action protocol could be carried out. In this case, there are no grounds for thinking that there would be a departure from that usual position, and indeed the contrary was not argued.”

  1. I accept that the Protocol shows the importance attached by the Court to compliance with its requirements.  I am, however, quite unable to accept the submission that Construction and Engineering Disputes are subject to a special regime or special principles pursuant to which the Court’s wish to ensure compliance with the Protocol is of paramount importance or in any way “trumps” the principles that are generally applicable to applications for extensions of time for the service of proceedings.  Neither the Protocol nor the TCC Guide states or implies the existence of such a regime or principles.  On the contrary, [6] of the Protocol and [2.3.2] of the TCC Guide complement the normal and well established principles by requiring the Claimant to bring the case before the Court for directions on notice.  Such an application ensures that the Court is in the best possible position to assess the significance of the failure to comply with the Protocol before the issuing of proceedings; it can then decide what steps should be taken for the future, whether by imposing an immediate stay for compliant steps to be taken or a later stay (as directed at the CMC in Charles Church) or otherwise, to counteract the failure of pre-action compliance.  With both parties before the Court and a full understanding of the facts it is of course possible that the Court will not grant a stay but will extend time limits to enable Protocol steps to be taken within an overall framework of directions.  Equally, it may decline to grant any extension at all in an appropriate case. 
  2. A Claimant may ask for an extension of time within the on notice application for directions, but it needs to be recognised that an application for an extension under CPR 7.6 and an application on notice for directions pursuant to the Protocol are not the same thing: a Claimant who applies without notice for an extension of time does not thereby comply with its obligations under [6] of the Protocol and (in a case brought in the TCC) [2.3.2] of the TCC Guide.  The Court will exercise its discretion in order to further the overriding application when deciding either form of application – the main difference is that an application for directions on notice is likely to provide the Court with further and better material on which to take its decision and has the necessary benefit of bringing both parties before the Court. 
  3. I respectfully agree with the observation of Ramsey J that the importance of a party issuing an application for directions on notice in a case to which [6] of the Protocol applies cannot be overemphasised.  I would only add that parties should not assume that Ramsey J’s reference to “usually” staying proceedings means that a stay will usually be imposed before service of the claim form or that the time for service of the claim form will usually be extended.  The Court will always have regard to the need to progress proceedings consistently with the overriding objective, particularly when any question of limitation may arise.
  4. It is common ground that [6] of the Protocol applied on the issue of proceedings in July 2013.  From that moment on, a number of things went wrong.  First, Lincolnshire did not apply on notice for directions either at the same time as or after applying for the initial extension of time.  No reason has been advanced for this failure.  Second, having itself set the period for compliance with the Protocol and service of proceedings by requesting the initial extension to 18 January 2014, Lincolnshire took no effective steps to advance compliance with the Protocol until 11 September 2013, which had the disastrous knock-on effect that the inspection did not happen until 24 October and the letter of claim was not sent until 3 December 2013.  Third, having recognised the need to serve proceedings by 18 January 2014 and having been told by Beale & Co that they were authorised to accept service, Lincolnshire did not cause Particulars of Claim to be drafted and did not serve the proceedings in accordance with the order of Akenhead J.  Fourth, Lincolnshire issued another application without notice, thereby compounding its failure to seek directions on notice in July.
  5. The only reason for the absence of any steps being taken before mid-September 2013 is that Mr Hanley took some holiday and, when at work, had to cover for other colleagues who did the same.  That is no good reason at all.  A solicitor undertaking litigation must ensure that it is run properly and efficiently and with the necessary allocation of resources.  Mr Hanley should have ensured that all necessary steps were taken promptly, but did nothing.  Even after 11 September LSL showed no urgency at all.  The period from 11 September to 24 October 2014 is unjustifiable as it is the product of the failure to arrange inspection before term started; and no evidence has been adduced showing any real attempts to persuade the School to allow an inspection earlier, whether during the weeks that passed or even at weekends.   No evidence has been adduced to indicate that Lincolnshire’s new expert was pressed to provide his report sooner than 8 November, or that Counsel was instructed to produce the letters of claim with extreme urgency.  In the result, by 3 December it was effectively impossible for the necessary steps to be taken, entirely because of the lack of urgency on the part of LSL.
  6. Mr Leabeater submitted that special consideration should be given to Lincolnshire being a local authority and subject to well-publicised constraints on funding.  That submission is not supported by any evidence to the effect that LSL could not have acted more promptly for want of resources: Mr Hanley’s evidence about holiday periods falls far short of establishing that it was not reasonably possible for this case to have been prosecuted diligently.  Even if such evidence had existed, it should be viewed with extreme circumspection.  As I have said, by February 2013 Lincolnshire was in possession of a report which asserted that Mouchel’s design was fundamentally flawed.  It is not self-evident that no competent external solicitor could have been identified who would have been prepared to take on such a case on a CFA so as to provide access to the court without adverse cash-flow consequences for Lincolnshire.  There is no evidence that any such step was even contemplated.
  7. Against the background of Lincolnshire’s failure to issue an application for directions as required by [6] of the Protocol and [2.3.2] of the TCC Guide, LSL should have served the proceedings on or before 18 January 2014 and the continuing failure to complete steps that should have been completed before the proceedings were issued is no good reason for failing to do so: see Leeson v Marsden.  Charles Church is not authority to the contrary: on proper analysis it serves to emphasise the importance of complying promptly with pre-action Protocol requirements and lends no encouragement at all to delay where proceedings have been issued and [6] of the Protocol applies.
  8. I reject the submission that there is a tension between the two principles identified by Mr Leabeater.  To my mind, the established principles, the amendments to the CPR that I have identified, and the terms of the Protocol all point in one direction: parties who issue late are obliged to act promptly and effectively and, in the absence of sound reasons (which will seldom if ever include a continuing failure to comply with pre-action protocol requirements) the proceedings should be served within four months or in accordance with any direction from the Court.  A claimant who does not do so and (where the Protocol for Construction & Engineering Disputes applies) who does not obtain directions on notice does so at extreme peril.

The order granting the second extension of time was set aside and the claim was struck out as it had not been validly served within the time of validity of the claim form.

BEST PRACTICE?

If a claimant finds themselves in this position it would have been far more prudent to serve proceedings and then ask the Court for a stay to enable the parties to engage in the Protocol.  Whilst a claimant exposes themselves to a risk in relation to costs this is usually more preferable to having the action fail altogether.

THE REAL DANGERS OF MAKING EX-PARTE APPLICATIONS TO EXTEND TIME FOR SERVICE

Anyone applying for such an order must remember that they can (and often are) set aside.  You are “dicing with procedural death”.

DO NOT RELY ON THE FACT THAT THE COURT HAS GRANTED AN ORDER: THERE IS NO “FALSE SENSE OF SECURITY ARGUMENT”.

Further a claimant cannot rely on the fact that a court has made an order as a basis for disputing an application to set aside the order.  A claimant is unable to argue that they gained a “false sense of security” from the fact that the order was made and this led to the claim not being served within the requisite period.

This was made clear by the Court of Appeal in Hoddinott –v- Persimmon Holdings  [2007] EWCA Civ 1203, where Dyson L.J.

“47.     In our judgment, the time has come to put the “false sense of security” point firmly to rest. We do not understand Robert Walker LJ to have been saying that the fact that a claimant is lulled into a sense of security by an order made without notice granting an extension of time is a factor to be take into account in deciding whether or not to set aside the order. He was merely stating as a fact that the solicitors may have been lulled into a false sense of security and suggesting that a word of warning from the district judge who extended time for service would have led the solicitors to take a different course. This was no doubt a helpful suggestion, but it was no more than that. Further, Robert Walker LJ emphasised that the decision should not be regarded as a precedent. We would add that Lord Woolf said nothing about the false sense of security point.

48. It follows that, if (as appears to be the case) Tugendhat J considered that Jones was authority for the proposition that the false sense of security point is a relevant factor to be taken into account by a judge who is deciding whether or not to set aside an order obtained without notice extending the time for service, we respectfully think that he was wrong to do so.

49. In our judgment, District Judge Daniel was right to regard the false sense of security point as irrelevant. In Collier v Williams at para 38, this court warned against the dangers of dealing with without notice applications on paper. But the paragraph also contained this passage:

“…An application for an extension of time for service of the claim form is potentially of critical importance, especially where the application is made shortly before the end of the four months period for service and where the cause of action has become time-barred since the date on which the claim form was issued. If the application is allowed and an extension of time is given, the defendant can always apply under CPR r 23.10 for the order to be set aside, in which case the applicant may be worse off than if it had been refused in the first place.”

50. Thus if a claimant applies for and obtains an extension of time for service of the claim form without giving notice to the defendant, he does so at his peril. He should know that an order obtained in such circumstances may be set aside. He can take no comfort from the fact that the court has made the order. He cannot be heard subsequently to say that it was the court’s fault that the order was made. That is not to say that, when such an application is made, the court should not consider it carefully and decide whether, on an application of the guidance given by this court in Hashtroodi and the later cases, the claimant has made out a case for extending time. On the material placed before District Judge Rowe, no such case was made out and she should not have made the order.

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