SERVICE, FAULTS AND …. THE MATCH IS OVER
As Wimbledon is underway it is worth reminding ourselves that even apparently minor faults in service can be fatal to an action. This is illustrated by the decision in
A DOUBLE FAULT
The Claimant had committed two classic mistakes:
1. Waiting until the end of the four month period of service before serving.
2. Failing to serve the particulars of claim with the claim form.
The first of these is always dangerous. One reason for this is that, contrary to the belief of the Claimant’s solicitors in the Venulum case, the claimant does not always have 14 days after service of the claim form to serve the particulars.
CPR 7.4(1) and (2) provide
(1) Particulars of claim must –
(a) be contained in or served with the claim form; or
(b) subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form.
(2) Particulars of claim must be served on the defendant no later than the latest time for serving a claim form.
The effect of this is that the particulars must also be served inside the four month period. A “trap for the unwary”.
SERVICE MISSING THE BASELINE
In Venulum the claim form was served on some of the defendants on the very last day for service, the particulars were not, they were served a few days later. However the claimant, therefore, had to apply for an extension of time and rely on the court’s discretion under C.P.R. 3.9.
PROBLEMS WITH THE COURT
This was an unusual case in that it straddled the rule changes. The application was made before the 1st April 2013 and the old 3.9 criteria applied. However the new addition to the overriding objective also applied (see Extensions of Time after Jackson:Safety First).
Mr Justice Edwards-Stuart rejected the claimant’s application for relief, applying the “old” 3.9. criteria.
TOUGH NEW UMPIRES
One feature of this case is the review the judge undertook of the more stringent approach the courts will take to applications under CPR 3.9. Referring to the decision of Court of Appeal in Fred Perry v Brands Plaza Trading  EWCA Civ 224. In giving the judgment of the court, Lewison LJ cited with approval paragraph 6.5 of the Jackson report, which said:
“… 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.”
GAME SET AND MATCH TO THE DEFENDANTS
The case is being cited as an example of the strict new regime in action. However there were particular factors of that case which tipped the balance:
· The claimant had waited for five years after the event before even consulting solicitors and indicating a claim. There was no explanation for that delay.
· The case against the defendants in question was not a strong one and the claimant had an equally good, and arguably better, case against other defendants.
· The claimant had put forward a case of “bad faith” which was pleaded in vague terms and which “did not merit indulgence”.
It is worth noting that the judge also stated
“If all other things were equal, I would have difficulty in these circumstances in seeing how it would be either just or proportionate to visit a few days delay in the service of the Particulars of Claim, particularly in circumstances where the application for the extension of time is made promptly – as it was here, by the sanction of preventing the Claimant from pursuing its claim against the Miller defendants for all time.”
It was the three factors set out above that “tipped the balance”.
ARE DEFAULTING PARTIES GOING TO GET A BREAK?
This illustrates the wisdom of getting your service in early and fast. Unlike tennis a claimant rarely gets a second chance. The judge stated that “solicitors acting for claimants who leave service of their claim forms until the dying weeks of the limitation period have to be wary.” Missing the deadline for service of the claim is almost invariably fatal. Missing the deadline for service of the particulars of claim could lead to profound problems?
KEEP AN HAWK-EYE OPEN FOR TIME PERIODS
1. Serve promptly.
2. Serve promptly.
3. Don’t leave it late.
4. Serve the particulars within the four month period.
5. Unless you are keen to be the brave litigant who tests the point, it would be prudent, if applicable, to serve the medical report and schedule within the four month period. The Practice Direction at 16PD.4. 3 states that the claimant “must” attach to the particulars claim the medical evidence and a schedule of damages.