EXTENDING TIME FOR SERVICE OF THE CLAIM FORM: A RISKY BUSINESS

In Medhi Kohsravi -v- British American Tobacco PLC [2016] EWHC 123 (QB)Sir David Eady stated that he would have set aside an order extending time for service of the claim form. It is a timely warning that obtaining an extension of time for service remains a risky business.

“The overriding objective requires that the disciplines imposed by the CPR should not be allowed to lapse unnecessarily. Any delay in the normal timetable must be justified by the applicant. Such extensions should certainly not be granted as a formality or go through “on the nod””

KEY POINTS

  • An application seeking an extension of time for service had to show good reason for that extension.
  • Difficulties with funding, or formulating the case, are not good reasons for extending time for service.
  • The appropriate course of action is to serve and seek a stay after service.
  • The without notice extensions of time in the current case were set aside. Consequently the claim would have failed (in fact it was struck out on other grounds).

PRACTICE POINTS

  • This case highlights the fact that it is always risky to obtain without notice extensions of time. They are liable to be set aside. The action then fails.
  • The most prudent course of action is to serve and then apply for a stay.

THE CASE

The claimant issued proceedings against the defendant and obtained a without notice orders to extend time for service of the claim form and particulars of claim. The claimant applied for an order striking out the claim, alternatively to set aside the extensions of time. The judge struck the matter out. However he also considered the issues in relation to an extension of time.

THE JUDGMENT ON THE EXTENSIONS OF TIME

The arguments on setting aside the extensions of time
  1. Finally, although it is strictly unnecessary to do so, I will address counsel’s submissions on the application to set aside the extensions of time for service of the claim form and particulars of claim. It was made in reliance upon CPR 11(1) and, as appropriate, within 14 days of the acknowledgement of service. For good measure, alternative applications were also made under CPR 23.10 and 3.1(7).
  2. The jurisdiction to extend time under CPR 7.6 must obviously be exercised in accordance with the overriding objective. A good reason must be given: see e.g. Hashtroodi v Hancock [2004] 3 All ER 530 and Hoddinott v Persimmon Homes [2008] 1 WLR 806. Mr Head argues that none has been provided by the Claimant in this case. While it has naturally been recognised that a litigant can establish a good reason where he has been unable to serve despite his best efforts, it seems clear that the court will not generally recognise mere lack of funding as such a reason: Cecil v Bayat[2011] 1 WLR 3086. Yet, as the Claimant accepts, this was put forward by himself and/or his then solicitor (Mr Barklem) as one of the two grounds for an extension.
  3. The other basis advanced was that time was needed to gather further evidence. This might have justified the seeking of a stay (at an inter parteshearing) once the proceedings were launched (on the basis of evidence already obtained), but it is hard to see how it would be a reasonable ground for holding up service of the claim form for nearly 18 months.
  4. I was invited to err on the side of generosity, having particular regard to the stress and poor health with which the Claimant has had to contend in recent years. On the other hand, the Defendants too are entitled to consideration and fair treatment in the litigation process. The longer the case is allowed to drag on, the greater the time and expenditure they will have to devote to it (with little prospect of recovering their costs if ultimately successful). They are entitled not only to clarity in the formulation of the claim, but also to be able to see at least the prospect of light at the end of the tunnel. This is especially so where the claim in question depends upon events alleged to have taken place many years ago.
  5. Sometimes, where a claimant’s difficulties can already be seen as attributable to wrongdoing on the part of the defendant (as often happens in personal injury or clinical negligence cases), it may be appropriate for the court to show a degree of forbearance if the claimant has to overcome hurdles in coping with the litigation in consequence. There may be circumstances in which a defendant should not be permitted to take unfair or tactical advantage of its own wrongdoing. Here, however, there is a fundamental issue as to whether any of this Claimant’s problems should be laid at the door of these Defendants at all.
  6. The overriding objective requires that the disciplines imposed by the CPR should not be allowed to lapse unnecessarily. Any delay in the normal timetable must be justified by the applicant. Such extensions should certainly not be granted as a formality or go through “on the nod”. The claim form would ordinarily have been due for service on the first Defendant in May 2014, but the extensions meant that the whole process was delayed for over 16 months. Then two more Defendants were added, which would in itself be likely to entail further delay as they acquaint themselves with the facts. All this was against the background of apparent inactivity following the initial letter of 2 August 2012 and especially during the prolonged silence between 30 March 2013 and 27 February 2015 (described in the witness statement of Ruth Grant at paras 14-15). It seems to me, therefore, that the scope for indulgence had become rather limited. Were it not for the orders I propose to make under CPR 3.4 and 24.2, I would therefore have been willing to set aside the extension orders.

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