LATE SERVICE OF THE PARTICULARS OF CLAIM AND ACCOMPANYING DOCUMENTATION: IT MAY STILL BE DANGEROUS – AND HERE’S WHY
We have looked twice already at the judgment in Mark v Universal Coatings & Services Ltd & Anor  EWHC 3206 (QB). One of the key findings in that case was that the claimant, who had served the particulars of claim, medical report and schedule late, did not require relief from sanctions to serve because there was no specific sanction imposed by the rules. This decision may well be correct. I have seen advice being given that indicates that practitioners may be able to relax their practices in this regard. However practitioners must be made aware that there are cases where the High Court has found the opposite. Cases have been struck out because of a failure to serve the particulars of claim timeously.
LATE SERVICE OF THE PARTICULARS OF CLAIM
It is not clear that any of the earlier cases on late service of the particulars were considered by the Court in the Mark case. There are, of course, arguments that these can be distinguished. However this is not an analysis of the finer points of the law, it is a cautionary note to point out that other judges have taken a different view.
NORTH SPEED CONSTRUCTION
The judgment of Mr Justice Edwards-Stuart in North Midland Construction plc -v- Geo Networks Ltd  EWHC 2384 (TCC) provides an object lesson in the dangers of delaying service of the particulars of claim.
The claimant issued two sets of proceedings. The first was known as to “Project Yellow” claim; the second the “Fibrespeed” claim.
- The particulars of claim in the Project Yellow claim were due be served by the 30th June 2015 after a consent order.
- The particulars of claim in the Fibrespeed claim were due to be served on the 2nd June 2015.
The claimant failed to serve both particulars of claim on time. The Project Yellow claim was served on the 20th July 2015 (just over two weeks late); the Fibrespeed particulars had not been served by the date of he hearing. The claimant was seeking an extension of time until (at least) the 31st August 2015.
- Relief from sanctions was granted in relation to one claim but refused in the other.
- The claimant had no good reason for the failures and delay in the Fibrespeed action.
- The judge held that it was not appropriate to grant the claimant relief.
ASSOCIATED ELECTRICAL INDUSTRIES LTD
Another case where the claimant came to grief with late service of the particulars is that of Mr Justice Smith in Associated Electrical Industries Ltd –v- Alstom Ltd  EWCA Civ 4330 (Com). A case where the claimant was 20 days late in serving the particulars of claim and, consequently, the action was struck out.
THE FACT S OF AEI
This was a claim brought by the claimant for a contribution following their payment of damages in a mesothelioma claim. The claim form was served on the 20th September 2013. The Particulars of Claim were not served until the 18th November 2013. They were served 20 days late. The claimant made an application for an extension of time, the defendant made an application to strike out the claim.
THE FINDINGS OF SMITH J: THE DEFAULT WAS NOT “TRIVIAL”
“However, I cannot accept that, given the approach to non-compliance that decisions of the Court of Appeal require, a default of 20 days in serving particulars of claim is to be categorised as trivial. In Mitchell itself the claimant was five days late with the costs budget but was not considered to have missed the deadline narrowly. In Raayan al Iraq Co Ltd v Trans Victory Marine Inc,  EWHC 2969, I granted an application for a retrospective extension of time when particulars of claim were served two days late, and my decision was criticised in Mitchell (at para 51). Mr Corby submitted that this was only because I said that relief from sanctions would not be refused where injustice would result and did not recognise the regard to be had to the “wide range of interests” affected by non-compliance, but in Thavarajah v Riordan,  EWCA Civ 14Richards LJ (who was party to the judgment in Mitchell) made it clear (at para 35) that the criticism was directed to my decision. In any case, the application of the de minimis doctrine in these circumstances does not depend only on the length of a failure to meet a deadline but (to use the Court of Appeal’s word) its nature. AEI’s failure to apply for an extension before 29 October 2013, or even to ask Pinsent Masons for one, reinforces my view that this is not a case where the de minimis doctrine applies.”
THERE WAS NO GOOD REASON
The judge was not persuaded that there was a “good reason”, some of the delay was caused by the court. However the fundamental point in answer to all the claimant’s submissions was:-
“But there is another answer to the submission that there was an acceptable explanation for the non-compliance, to which I have already referred. If difficulties in investigating the claim do justify the particulars being late, a timely request for an extension should have been sought from Alstom and if necessary a timely application to the court should have been made”
In Frontier Estates -v- Berwin Leighton Paisner (Ch D 30/10/2014)* John Male QC upheld a decision not to grant an extension of time for service of the particular of claim. What makes this case important is that the application was made ahead of time. An extension was refused under CPR 3.1(2)(a)
The claimant made an application of time for extension of service of the particulars of claim. The application was made prior to the time for service elapsing. The Master had, wrongly, decided the application under CPR 3.9 when it should have been heard under 3.1(2)(a) and refused the application.
THE DECISION ON APPEAL: EXTENSION REFUSED EVEN IF HEARD UNDER CPR 3.1.(2)(a)
The judge held that the Master had considered the application under the wrong rule. However the decision not to grant an extension was upheld.
- Everything had happened last minute on the claimant’s side.
- There had been no pre-action protocol letter.
- The claim was issued just before the expiry of the limitation period and the claim for had been served and the application made at the last moment.
- There had been sufficient information for the claimant to draft a pre-action protocol letter and the claimant had been in a position to formulate particulars of claim for some time.
- There was no adequate explanation for the delays.
- The claimant’s witness statement in support had only been served three days before the hearing.
- The defendant would suffer greater prejudice if the claim were to proceed.
- This was not a case of a defendant gaining a windfall by being able to rely on a limitation defence. The limitation period existed to protect defendants from stale claims.
- The master had been correct in his conclusion. He was troubled by the lack of evidence.
- Although the master had proceeded under the wrong provision (CPR 3.9 rather than 3.1.(2)(a)) his conclusion had been correct.
In Chelsea Bridge Apartments Ltd -v- Old Street Homes Ltd (Deputy Master Cousins, 4th September 2017*) Deputy Master Cousins refused the claimants’ application for relief from sanctions in failing to serve Particulars of claim on time.
Two claimants brought an action alleging that they were entitled to a percentage share from the proceeds of sale of certain properties. The Particulars of Claim should have been served by the 6th January 2017. The claimants did not make an application for an extension of time/relief from sanctions until the 22nd March 2017 after being told to this by the Deputy Master who made a peremptory order to this effect. Draft Particulars of Claim were attached to that application. The documents required to be served with the Particulars of Claim were sent on the 30th March 2017.
“31.Having regard to all the circumstances, and the legal principles set out above, I consider that this is a case where the Court should refuse Relief from Sanctions. My reasons are as follows:
(1) As to the First Stage of Denton, I find that the failure on the part of the Claimants to serve the draft Particulars of Claim at the latest by 6th January 2017, and not to have done so in fact until at least 22nd March 2017, is a serious and significant failure. Confusingly there are two different versions of the draft both dated 22nd March 2017, but seemed to have been produced at different times. In any event the accompanying documents in support of the Particulars of Claim were not provided until 30th March 2017. This draft pleading was therefore at least three months late on any reckoning. No application for an extension of time was made until 22nd March 2017;
(2) As to the Second Stage of Denton relating to the reasons why the failure or default occurred, having regard to the analysis set out in paragraph 13(4) as to the two periods of time, and the actions and inactions on the part of the Claimants 13  EW CA Civ. 153. 13 that occurred, I find that the failure to appreciate the requirement to serve the Particulars of Claim by a certain date, or at all, is not a good reason;
(3) I further find that it is not a good reason to assert that the Claimants’ solicitors were under pressure at the time in the conduct of the case on behalf of their clients. In any event, as has been submitted on behalf of the Defendants, there does not appear to have been any particularly onerous or unusual aspects to the case;
(4) Further, these submissions still do not explain the reasons for what appears to be some considerable tardiness between 7th February 2017 and the 22nd March 2017 whilst the Claimants were represented by their present solicitors. It was not until the latter date that the Application for an Extension of Time was made on behalf of the Claimants to file the draft Particulars of Claim out of time, and for Relief from Sanctions. Somewhat disingenuously it is now submitted on behalf of the Claimants that in an ideal world this Application could have been made sooner. In this context, it seems to have been suggested that the Claimants’ solicitors (as it is put) “changed the way” that the case was being handled;
(5) In my judgment, the Claimants have failed to demonstrate that this is a (rare) instance where the contextual framework is such that this could be put forward as a good reason;
(6) As to the Third Stage of Denton, in all the circumstances of the case, and in particular having regard to (a) the efficient conduct of litigation at proportionate costs, and (b) the enforcement of compliance with the CPR, I find that the Claimants have not and are not conducting the litigation efficiently, or at a proportionate cost. I agree with the submissions made on behalf of the Defendants that it was the Claimants who embarked upon this litigation and chose to do so with an ill-thought-out and precipitate application on a without notice basis attempting to seek a freezing order, which was then not granted. The poorly drafted Claim Form was issued and served pursuant to the Claimants’ undertaking to the Court to do so, and then the Claimants immediately sought a stay. They then apparently refused to mediate.
32. Thus, in my judgment, that there has been serious and substantial default on the part of the Claimants, for which inadequate reasons have been provided. There has been substantial disruption in the progress of the action as a direct result of the Claimants lack of action.
33. Accordingly, I find that the Claimants have failed to demonstrate any good or sufficient reasons for this serious and significant failure, and I adopt the framework set out in accordance with CPR 3.9 relating to Relief from Sanctions. For the reasons stated I therefore refuse to grant the Claimants such relief.
34. Further, I consider that in the exercise by the Court of its general discretionary power under CPR 3.1(2)(a) to extend time for compliance, or otherwise, I am entitled to refuse the Claimants an extension of time on their application for an extension of time as they have failed to comply with the time limits imposed by CPR 7.4 for service of the Particulars of Claim.
35. I also disagree with the submission made to the effect that the Brief Details of Claim are sufficient to constitute Particulars of Claim. In my judgment by no stretch of the imagination is it possible for the Brief Details of Claim to somehow be considered of sufficient standing to constitute Particulars of Claim. This pleading is generalised in its nature, and is lacking in intellectual rigour. It is unclear, in my judgment, as to precisely what it is that the Claimants seek in this document. Indeed, in contrast it is to be noted that a draft Particulars of Claim dated 22nd March 2017 was produced by Counsel in which the various points relied upon are pleaded with more particularity, but very late in the day.
36. Finally, a number of assertions have been made including one relating to a “completion statement” as to the sale of Chronicle Heights, all of which, so it is said, demonstrate that the Defendants, and their legal representatives, have behaved in an improper manner, and, in effect, have misled the court. In my judgment, it would be quite inappropriate for me, at this stage, to make any findings in this regard. The application before me is whether the Claimants are in breach of the Rules and should be granted Relief from Sanctions. I have found that has been serious and substantial default on the part of the Claimants, for which inadequate reasons have been provided, and the merits of the Claimants’ case are at the highest, scanty. It cannot be said, in my judgment that on the case as presented to me during lengthy submissions, that the Claimants have reasonably good prospects of success.”
DALUS -v- LEAR
This case related to non-service of a medical report. However the issue of whether there had been a breach of the rules or practice direction was considered. The claimant was bringing an action for industrial deafness against a number of defendants. The First Defendant applied to strike out the Claimant’s claim because it alleged that the Claimant had failed to serve compliant medical evidence in accordance with CPR 35 and CPR PD 16 paragraph 4.3
THE CLAIMANT’S MEDICAL REPORT
The Particulars of Claim were accompanied by an “AMR” a report by Audiological Measurement and Reporting Plc. The AMR report was not based on an examination of the claimant but was a means of ensuring that audiometric testing was accurate. Audiological Measurement and Reporting Plc
Whether there has been a breach of a Rule or Practice Direction
Leading Counsel for the Claimant raised an issue rhetorically during his submissions to the Court whether the rules do require the filing and service of a medical report with the Particulars of Claim. He relies on the fact that paragraph 4.3 of the Practice Direction to part 16 CPR appears only to require it where the Claimant is relying on the evidence of a medical practitioner. My personal recollection was that a medical report had always been a requirement and I am reinforced in this view by the County Court Rules as they applied in 1998 where at Order 6 Rule 1 (5) it stated:
“(5) Subject to paragraph (6) a plaintiff in an action for personal injuries shall file with the Particulars of Claim-
A medical report
A statement of the special damages claimed”
22. In my judgment the different wording in the Civil Procedure Rules is to cater for those cases where a litigant wishes to make a claim for personal injuries but does not intend to rely on a medical report in order to prove the injuries he contends he has suffered. If he has suffered bruising which resolved after two weeks he may choose to prove this injury by a combination of his own evidence and perhaps photographs reasoning that it would be disproportionate and unnecessary to go to the expense of obtaining a medical report.
Later in the judgment