LATE SERVICE OF THE CLAIM FORM: EXTENSION REFUSED: REMINDER TO SERVE PROMPTLY AND PROPERLY

The case of Bellcrown Associates Ltd -v- Royal Bank of Scotland (QBC) 17/03/2015 is reported on Lawtel today*. It provides another example of the dangers of not serving a claim form properly.

THE CASE

The claimant was bringing an action for damages for negligence and breach of contract against the defendant.

  • The claim form was issued on May 19 2014 and the claimant had four months to serve.
  • A one week extension was granted by a master on September 19.
  • A further application to extend was refused but the claimant was given permission to appeal.

The claimant then amended its grounds of appeal to argue that the claim form had already been served.  The claimant’s director had hand delivered the claim form to the defendant along with a request to consent to service of the claim form in January 2015.

THE DECISION

  • It was clear that the application before the master had been for a further extension of time to serve the claim form and particulars of claim.
  • It was plain that the claimant’s position was that the claim form had not been served.
  • The claimant’s conduct did not amount objectively to service.
  • The fact that one party thought it amounted to serve did not make it so.
  • The claim form had been included in the letter not to serve but to inform the defendant that an application to extend was being made.

The court refused permission to amend the notice of appeal.

THE APPLICATION TO EXTEND

  • To extend service of the claim form the circumstances had to be exceptional.
  • The claimant had six years and one week to get its claim together.
  • The circumstances were not exceptional.
  • The claimant’s argument that it had been subject to time restraints could not succeed.

The appeal was “hopeless”.

UNSERVED CLAIM FORMS: THE UNEXPLODED GRENADE IN YOUR FILING CABINET

This case illustrates the point that an un-served claim form is an unexploded grenade in your filing cabinet.  Applications to extend will rarely, if ever succeed.

OTHER POSTS ON THIS BLOG THAT RELATE TO SERVICE

*The note of the case is based on the Lawtel summary.

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