THE LIMITATION PERIOD IS JUST ABOUT TO EXPIRE AND YOU ARE NOT READY: FIVE KEY POINTS FOR WHEN YOU DICE WITH PROCEDURAL DEATH
No matter how hard litigators try (and how many warnings are given) it appears inevitable that, sooner or later, you are going to have a case where the limitation period is about to expire but you are not ready. The problem is most acute for personal injury lawyers who need to have medical evidence and a schedule of damages in support. Here we consider the options. None of them are wholly safe.
(1) ATTEMPT TO AGREE A “LIMITATION AMNESTY”
These are now a common feature of litigation. Indeed an earlier post noted that a judge had awarded costs against a claimant because they had failed to seek a limitation amnesty prior to issue.
- Make sure you agree a limitation amnesty with all the proposed defendants (and you are sure who the defendants are going to be).
- Ensure that the terms are totally clear. Rather than “a further three months” there should be a clear date given.
- Often the amnesty is agreed in general terms with the agreement being revoked by the defendant giving a period of notice. Make sure the period of notice is reasonable and that it has to be given in writing.
(2) ISSUE THEN APPLY FOR AN EXTENSION OF TIME TO SERVE THE CLAIM FORM
This has to be the most dangerous option. There are numerous case reports on this blog where the courts have set aside extensions of time to serve the claim form.
For example, in Foran -v- Secret Surgery Ltd  EWHC 1029 (QB) the order extending time for service of the claim form was set aside. The claimant’s solicitor had explained their difficulties
“… the limited evidence before the Master no good reason was provided by the Claimant’s solicitors for their failure to serve the claim form within the prescribed period, and the Master was wrong to grant the extensions of time. Merely explaining why the application was being made…, does not amount to showing a good reason for the delay in serving the claim form, upon which the Master needed to focus and which he failed properly to consider.”
- The defendant can apply to set the order aside. This happens regularly.
- A claimant cannot rely on a “false sense of security” argument – blaming the court for granting the extension. This argument was effectively killed by the Court of Appeal in Hoddinott v Persimmon Homes (Wessex) Ltd  EWCA Civ 1203
- If the order is set aside the action is over.
There are some cases where claimants have been successful in opposing an application to set aside an extension. However these are rare. It is a brave (or foolish) litigator who conducts a case on th assumption that extensions will be granted and, if challenged, upheld. The main difficulty being that there is often little answer to an argument that there was nothing preventing a claimant from serving the claim form. The claim form could have been served and an application made to extend time for service of the particulars of claim and other relevant documentation.
- Extending time for service of the claim form: a risky business
- Service of the claim form: another example of a claimant coming to grief.
- Delaying service of the claim form: dicing with procedural death
- Late service of the claim form, extensions of time and restoration to the register: it doesn’t end well
- Extension of time for service of the claim form set aside: a case all claimants should know.
- Extensions of time for service were properly granted: applications to set aside service are a rehearing not a review.
(3) AGREE TO EXTEND TIME FOR SERVICE OF THE CLAIM FORM
It came as a surprise to many when the Court of Appeal stated that this can be done. However this was in a case where the claimant still came to grief. In Thomas -v- Home Office  EWCA Civ 1355. The Court of Appeal held the parties can agree to extend time, however that agreement must be in writing, on a document signed by both sides or with the exchange of correspondence.
- Again the time agreed must be clear and explicit. The claimant failed at first instance in the Thomas case because there was disagreement about what had been agreed orally. The claimant believed a further extension of “a further month” ran from the date of expiry of an earlier agreement, the defendant believed it ran from the date of the conversation.
- There may be some ambiguity about the time needed for service of the particulars of claim and medical report.
- There are several cases where a claimant has agreed an extension of time to serve the claim form and subsequently forgotten to serve it when serving the particulars of claim.
- Similarly there are several cases where a claimant has applied for an extension of time to serve the particulars of claim but forgotten to seek an extension of time for service of the claim form.
(4) SERVE THE CLAIM FORM AND THEN APPLY FOR AN EXTENSION OF TIME FOR SERVICE OF THE PARTICULARS OF CLAIM AND MEDICAL REPORT (IF RELEVANT)
In a difficult situation this would be my own preference. The important point here is to serve the claim form and make the application for an extension of time prospectively that is within (and preferably well within) the four month period for service.
- A prospective application to extend time meets with a very different set of principles to a retrospective application, see Robert v Momentum Services Ltd  1 WLR 1577 (CA) where Dyson LJ stated:
“I do not consider that observations made about prejudice in relation to proceedings issued after the expiry of the limitation period are of assistance in determining what prejudice is relevant for the purpose of deciding how to exercise the discretion conferred by rule 3.1(2)(a). It seems to me that the correct approach is to concentrate on prejudice that has been and/or will be caused to the defendant by the failure to serve the particulars of claim in time. Most applications under rule 3.2(1)(a) are for relatively short extensions of time for taking some step in the proceedings. The present case is a good example. It would be very surprising if, when dealing with such applications, district judges were required to embark on what could be the quite complex exercise of investigating what prejudice the defendant has suffered at earlier stages in the proceedings, or before proceedings have been issued at all. I accept that there may be circumstances in which the prejudice suffered as a result of the failure to act in time will be qualitatively affected by earlier prejudice. But as a general rule, I would hold that the focus of attention should be on the prejudice occasioned by the failure itself, and not on pre-existing prejudice. In my view, the judge was wrong to say that the fact that the defendant could point to no prejudice that would result from the grant of an extension of time itself was “beside the point.””
- An application can be made without notice, see Lachaux -v- Independent Print Ltd  EWHC 1847 (QB). It was made clear that the important point is the time that the application is made not when it is heard
“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.”
- If the application is made without notice the defendant can apply to set it aside (There is, however, nothing to prevent an application being made on notice and served on the defendant).
- It is essential that the Particulars and other documents are served within the extended period (or a further extension obtained prior to the first extension lapsing).
- Remember the particulars of claim and other documentation have to be served within the initial four month period, even if you serve the claim form at the end of that period.
(5) REMEMBER YOU ARE “DICING WITH PROCEDURAL DEATH”
Being up against a limitation period is never comfortable. Nor is it ever completely safe.
“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.”
Mr Justice Stuart-Smith Lincolnshire County Council v Mouchel Business Services Ltd & Anor  EWHC 352 (TCC)