EXTENDING TIME FOR SERVING PARTICULARS OF CLAIM: AN APPLICATION AHEAD OF TIME SAVES THE DAY

In Lachaux -v- Independent Print Ltd [2015] EWHC 1847 (QB) Mr Justice Nicol considered the question of whether the court has power to prospectively order  an extension of time for service of the particulars of claim. He also considered the question of the court’s discretion to set aside an order made without notice.

THE CASE

The action was a defamation action. The claimant issued the first action in December 2014. A second action was issued on the 23rd January 2015 in relation to a different article. A hearing took place in February in relation to the first action. The court was not told of the existence of the second action.  The claimant served the claim form in the second action on the 19th May 2015 4 days before expiry of the time limit. On the 22nd May 2015 the claimant made a number of applications in the first action.  On the 22nd May 2015 the claimant obtained an order from the Practice Master and obtained a without notice order that the Particulars of Claim in relation to the second action should not be served until seven days after the applications were heard in the first action. That application was granted.

The defendant made an application to set aside the without notice orders.

KEY POINTS

  • The court has a general power to extend time for service of the particulars of claim in advance of the due date for service.
  • When the application is made before the date of service then the principles relating to applications for relief from sanctions do not apply. The more generous provisions in Robert -v- Momentum Services have to be considered.
  • The claimant should not (and need not) have made an urgent application to the Master. The date of the application is the key date.
  • The court set aside the order of the Master extending time. However it then exercised its own discretion to extend time (using the Robert criteria).

ARGUMENTS IN RELATION TO THE APPLICATION TO EXTEND TIME FOR SERVICE OF THE PARTICULARS OF CLAIM

  1. Mr Barca for AOL and Mr Price for IPL argue first that the Claimant was not entitled to apply without notice to Master Yoxall. They note that CPR r.7.6(4)(b) expressly allows an application for an extension of time to serve the Claim Form to be made without notice. There is no equivalent provision allowing an application for an extension of time for service of the Particulars of Claim to be made without notice. Stuart-Smith J. drew attention to the distinction in Lincolnshire County Council v Mouchel Business Services Ltd [2014] EWHC 352 (TCC) at [21]. Mr Busuttil accepted that there was this difference and that there was no specific provision for applying without notice for an extension of time to serve the Particulars of Claim. However, he submitted that the Claimant could rely on the general provision in CPR r.23.4(2)(b) which allows an application to be made without notice if this is permitted by a Practice Direction. CPR PD 23A paragraph 3 provides that an application can be made without notice ‘where there is exceptional urgency’. That was the case here, they said, since the time allowed for serving the Particulars of Claim in the 2nd IPL claim would have expired on 23rd May 2015. The time for serving the Particulars of Claim in the 2nd AOL claim would have expired on 5th June 2015. There was extreme urgency in both cases.
  2. Mr Barca and Mr Price respond by saying that there was no such urgency since, in the absence of agreement to the Claimant’s proposed combined Particulars of Claim, the Claimant could simply and swiftly have issued Particulars of Claim limited in the one case to the 2nd IPL claim and, in the other, to the 2nd AOL claim. Furthermore, any shortage of time was because of the Claimant’s own delay in deciding to proceed with these second claims.
  3. Mr Barca and Mr Price also submit that the Claimant did not comply with CPR r.23.9(2) since the application notice was not served with Master Yoxall’s order, nor was the evidence relied upon in front of the Master served with his order. Further information as to what took place before the Master was given in Mr Taylor’s second witness statement, but that was only made on 10th June 2015, one day before the hearing of the present applications. In addition, the Claimant did not comply with CPR r.23.9(3) which requires an order made without notice to contain a statement of the respondent’s right to apply to set aside or vary the order under CPR r.23.10.
  4. More generally, Mr Barca submitted that the Claimant had stolen a march on AOL. But for the Master’s order, time for serving the Particulars of Claim would have expired, the Claimant would have had to justify being granted relief from sanctions under CPR r.3.9 as interpreted in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 (CA) and Denton v T.H. White Ltd [2014] 1 WLR 3926 (CA). The Defendants have been prejudiced therefore by his unjustified use of the without notice procedure. Mr Barca and Mr Price made wider criticisms of the pace (or rather lack of it) with which the Claimant has pursued his remedies for these publications, but it is more convenient for me to consider those later in this judgment.
  5. In the note lodged with the Court after the hearing concluded (and to which I have referred above) Mr Busuttil submitted that Mr Barca’s argument was misconceived. If an application for an extension of time is filed with the Court before the existing time expires then it remains an application for an extension, even if it is heard after the deadline has passed. The lapse of time between filing and hearing of the application did not mean the applicant now had to ask for relief from sanctions – Robert v Momentum Services Ltd [2003] 1 WLR 1577 (CA) and Hallam Estates v Baker [2014] 4 Costs LR 660 (CA). It remained the case that the applicant was invoking the power in CPR r.3.1(2)(a) to have a time limit extended. In consequence, Mr Busuttil submitted, the order of Master Yoxall was strictly unnecessary. The Claimant was in no better position because it had been made and the Defendants were in no worse a position.
SETTING ASIDE THE MASTER’S ORDER
Setting Aside Master Yoxall’s orders: Discussion
  1. This is largely an academic issue. Mr Taylor says that he went before the Practice Master ‘out of an abundance of caution (and with the benefit of hindsight, I recognise that it might not have been necessary to do so).’ His hindsight is correct. As Hallam Estates v Baker (above) shows, if an application for an extension of time is made in time, then, even if it is heard after the time limit expires, the Court will still approach the matter as an application under CPR r.3.1(2)(a). The applicant will not then have to satisfy the more stringent standards applied when relief is sought against sanctions.
  2. Nonetheless, so far as it has any relevance, I consider that AOL and IPL were entitled to have Master Yoxall’s order set aside.
  3. It is not significant that Taylor Hampton omitted the statement of the right of the Defendants to apply to have the order set aside. It is quite correct that this should have been included – see CPR r.23.9(3), but Lewis Silkin and David DPSA are extremely experienced solicitors. They did not need to be told that they had this right. They did indeed apply to have the order set aside even though the Claimant had omitted to give them notice of this right.
  4. There are, though, other matters of more importance.
i) As I have observed, Mr Busuttil argued that the Master had jurisdiction to deal with the matter without notice to AOL or IPL because this was a case of extreme urgency. In the case of AOL, that was far from obvious since there was about 2 weeks before the time limit for serving Particulars of Claim expired. It is true that the deadline for service of the IPL Particulars of Claim was more imminent. But in both cases, there was a dearth of evidence as to why the Claimant had got so close to the wire. In his witness statements, Mr Taylor does say that the Claimant was of limited means and needed to find out if his lawyers would act on a Conditional Fee Agreement, but he says nothing about when the decision to proceed with the 2nd AOL claim or 2nd IPL claim was taken. The Master clearly did not have the witness statement of 10th June 2015. I assume that he had available Mr Taylor’s witness statements in support of his Application Notices, but they did not provide this information.
ii) Mr Busuttil relies on the extreme urgency of the situation which did not allow the application to the Master to be made on notice. There is, in addition, though, some force in the arguments of Mr Price and Mr Barca that the Claimant had a draft consolidated Particulars of Claim prepared. The Claimant knew that AOL and IPL did not consent to Particulars of Claim in that form. It would have been a relatively simple matter to cut and paste that existing draft to provide a separate set of Particulars of Claim for the 2nd AOL claim and a separate set of Particulars of Claim for the 2nd IPL claim. This could have been done swiftly.
iii) Even if Mr Taylor was justified in applying without formal notice to AOL or IPL, it is not clear why informal notification was not given to their solicitors that this was what he intended to do. The Practice Direction to Part 23A paragraph 4.2 urges litigants to do this unless the application required secrecy (which Mr Taylor’s did not).
iv) Mr Taylor’s witness statements of 22nd May had another difficulty. There was a conflict between what the statements said about when the Claimant had first learned of the second articles and what had been said in Taylor Hampton’s letters of 11th May 2015 which were exhibited to the witness statements. Mr Taylor says in his 10th June 2015 witness statement that his letters were in error. He explains that he was ill for parts of 2014. Mistakes, of course, do happen, but the Defendants were entitled to find out what was the true position, and that only became clear with Mr Taylor’s witness statement of 10th June.
v) CPR r.23.9(2) requires the party who has applied without notice to serve the application notice and any evidence in support. I am not sure if Mr Taylor went through the stage of preparing an application notice to get before Master Yoxall. Certainly none was served on the Defendants. It does not seem as though any additional evidence was filed when Mr Taylor went before the Master. It is only with Mr Taylor’s witness statement of 10th June that AOL and IPL were provided with an account of what had taken place.
  1. For all of these reasons I would set aside Master Yoxall’s order. It is a separate question as to whether the Claimant should be given an extension of time for serving his Particulars of Claim. I turn to that next.

GRANTING TIME FOR SERVICE OF THE PARTICULARS OF CLAIM

The judge then went on to consider the arguments in relation to whether an extension of time should be granted.
  1. In my judgment, there should be an extension of time for service of the Particulars of Claim.
i) As Hallam Estates v Baker (above) shows, the Claimant does not have to satisfy the criteria for relief from sanctions as set out in Mitchell and refined in Denton. The issue is whether the Court should exercise its discretion in CPR r.3.1(2) bearing in mind the overriding objective in r.1.
ii) The Claimant has not served his Particulars of Claim within the time prescribed by CPR r.7.4(2) and, to that extent he has not acted expeditiously. But it was in anticipation that that would be the case that the Claimant made the present application.
iii) I agree with Mr Busuttil that the starting point is that the Claimant has issued his second claims against AOL and IPL within the ordinary limitation period and served the Claim Forms in time.
iv) Furthermore, I consider that it is significant that the Claimant did set out his case in relation to these second claims in draft Particulars of Claim which were sent to IPL and AOL on 11th May 2015 and so before the time for formal service expired. This was not, and could not, be formal service, but it did mean that they have known since then the case he wants to advance.
v) The Defendants are entitled to say that the Claimant has not moved in relation to these second claims with the expedition which is expected of a defamation claimant (even before his failure to serve the Particulars of Claim in time). On occasions the submissions of Mr Barca and Mr Price seemed to be inviting me to conclude that these were not serious libels and/or the proceedings were an abuse. However, those are arguments which they will be able to deploy when the preliminary issue comes to be tried.
vi) In considering Master Yoxall’s order, I have already observed that the Claimant’s evidence is still unclear as to when he decided to proceed with these second claims. It is also unclear as to why, when AOL and IPL refused to agree to service of combined Particulars of Claim, separate pleadings were not immediately served in each of the actions. To that extent there is still no satisfactory explanation as to why an extension of time was needed. I understand that the Claimant believed that consolidation was the more economical way to proceed, but, as Mr Busuttil accepted, consolidation required an order of the Court. Serving separate Particulars of Claim did not. While the inadequacy of the explanation of the need for an extension is a factor which counts in the Defendants’ favour, it is not determinative.
vii) The Claimant’s method of proceeding against AOL and IPL has been unfortunate. While I pay heed to the evidence of Mr Taylor as to the Claimant’s means, it is still something of a mystery as to why, if the 2nd AOL article was of so similar effect to the 1st AOL article and the 2nd IPL article was so similar to the 1st IPL article, the two articles by IPL were not both dealt with at the same time and the two articles by AOL were not dealt with at the same time. Of course, that assumes that the Claimant knew of the second articles. But Mr Taylor’s 10th June 2015 witness statement makes clear that the Claimant did know of both AOL articles when the first AOL claim was issued and did know of both IPL articles when the 1st IPL claim was issued. Each article was a separate publication. As Mr Busuttil accepted in the course of the hearing, in connection with each the Claimant will have to establish that it caused him serious harm. Each can in principle be the subject of a separate claim. But the overriding objective requires the Court to deal with cases ‘justly and at proportionate cost’ – CPR r.1.1(1). The Claimant’s chosen way of proceeding means that Sir David Eady could not deal with the meanings (if different) of the 2nd as well as the 1st IPL articles. It has meant that Nicola Davies J could not deal with the best way of proceeding with the 2nd as well as the 1st AOL and IPL articles. Although IPL knew of the existence of a second claim against it and AOL may have known of the second claim which had been made against it, primary responsibility for keeping the Court informed rested with the Claimant (whose claims, after all, these were).
viii) Nonetheless, I have concluded, weighing all of these matters together, that it would not be just to refuse the Claimant an extension of time for service of his Particulars of Claim. Subject to any further submissions which the parties may wish to make, my provisional view is that the fair way of proceeding is to allow the Claimant this relief but to require him to pay the costs of the application.

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