SERVING THE COURT FORM (AFTER) THE LAST MINUTE: COURTING DISASTER LEADING TO A WASTED COSTS ORDER BEING MADE
The judgment of Master Cook in Jovicic & Ors v The Serbian Orthodox Church-Serbian Patriarchy  EWHC 2229 (QB) provides an object lesson on the dangers of not serving the claim form well within the four month period. The judgment also deals with issues in relation to jurisdiction and wasted costs. This post looks at the question of service within the relevant period. There are a number of important lessons here: (i) do no leave service of the claim form to the 11th hour; (ii) if there is delay in formulating the case serve the claim form well within the four month period and seek an extension of time for service of the particulars of claim and other documents; (iii) all litigators have to have a detailed working knowledge of the rules relating to service, and obtaining extension of time for service.
“a litigant who leaves service of the claim form to the last minute “courts disaster“”
The claimants bring action against the defendant for events that allegedly happened in Croatia. Proceedings were issued on the 8th January 2019. Service would have to take place before midnight on the 8th May 2019. Proceedings were served late.
The Master was considering an application for wasted costs made against the claimants’ solicitors. One of the grounds of the application was that the claim forms were not served within the four month periods.
THE DELAY IN SERVICE AND LATE APPLICATION FOR AN EXTENSION OF TIME
The Master found that the claim form had been served outside the four month period. An application to extend time had not been made timeously and not pursued in any event. In these circumstances the solicitor’s conduct satisfied the criteria of conduct that could justify a wasted costs order being made.
xvii) Later that day [7th May 2019] Mr Kesar purported to send e-mails to the Court and to the Defendant attaching applications to extend the time for service of the claim form by a period of four weeks. However as noted in paragraph 5 above the Court has no record of receiving these e-mails and the covering letter on the court file is dated 28 May 2019.
xviii) On 31 May 2019 DWF noted that the applications had been issued and pressed for a response to the questions which had previously been put in relation to jurisdiction. There was no response form Mr Kesar despite further reminders on 10 June, 11 June and 26 June 2019.
xix) On 2 July 2019 Kesar & Co purported to serve the claim forms particulars of claim and other documents by post at the London Parish address 89 Lancaster Road. At this point it is relevant to note the following. Mr Kesar knew that the court was proposing to list his application for an extension of the claim form on 12 July 2019. He had been told and should have known that the four-month life of the claim form had expired. The only reason Mr Kesar had ever put forward for an extension of time for service of the claim forms was delay in obtaining medical reports. Kesar & Co did not attend the hearing which was listed on 12 July 2019 and no attempt has ever been made to revive or relist the application and no application was ever made to amend the claim forms.
As Lord Sumption said in Barton -v- Wright Hassall LLP  1 WLR 1119  a litigant who leaves service of the claim form to the last minute “courts disaster“.
I cannot accept Mr Friston’s submission that there was a “mere negligent failure” on the part of Mr Kesar to serve the claim forms. In my extempore judgment I expressed the view that Mr Kesar seemed to have no proper understanding of the effect of CPR r 7.5 or the difficulty presented by CPR r 7.6 (3). I expressed this view because, as explained in my judgment, the application for an extension of time had in fact been made to the court after the time specified by CPR r.7.5. In his witness statement dated 27 April 2020 Mr Kesar suggests that he reasonably believed the applications to extend time for service of the claim form were made in time by reason of the e-mails he alleges he sent to the court on 8 May 2019, Mr Kesar expanded on this explanation at paragraphs 52 tp 56:
“52. Whilst I was instructed to issue proceedings on 8 January 2019, I did not receive translated versions of the Claimants’ medical evidence until 8 May 2019 (this being for reasons that I am unable to explain without waiving privilege, but which I can say were not as a result of any failure on the part of my firm). There was insufficient time for counsel to deal with matters, so I applied for an extension of time. As I will explain in my response to Ground (o), I reasonably believed that those applications had been made in time, and that as such, that CPR, r 7.6(2) (as opposed to CPR, r 7.6(3)) applied.
53. On 2 July 2019, I filed and served the claims in anticipation of those applications being allowed or agreed. I was conscious that, should the court reject those applications, the claims would have been re-issued. As such, I thought that it was sensible to serve them sooner rather than later.
54. On 3 July 2019 (ie, the day after), I phoned the court clerk, Ms Baditoiu, and asked for an update regarding the Claimants’ applications. As I will explain in my in response to Ground (o), I do not believe I that asked the court not to list those applications at all (and certainly did not intend to do this), but I did ask her not to list it on the day that Ms Baditoiu proposed, namely, 12 July 2019. As such, I believed that the applications to extend time would be listed at some other point in the future.
55. I did not fail to attend a court hearing, as no hearing was ever listed (other than that on 17 January 2020). I believed that the application would be dealt with at the hearing in January 2020.
56. In view of the above, I believed that the Claimants had extant ‘in-time’ applications for an extension of time. It was only at the hearing on 17 January 2020 that I discovered that the court thought otherwise.”
There are a number of difficulties with this explanation. First, if the only reason an extension of time to serve the claim forms was required was to finalise the particulars of claim, the claim forms should have been served and an application made to extend the time for service of the particulars of claim under CPR 7.4(2). In other words, it would still have been necessary for Mr Kesar to show a good reason for extending the time for service of the claim forms, and the reason he relied upon was arguably not a good reason, see Cecil v Bayat  EWCA Civ 135. Second, Mr Kesar’s evidence fails to deal with his letter to the court dated 28 May 2019 and received by the court on 29 May 2019. On any view the expiry of the claim forms was an important issue. Mr Kesar chose to do nothing about this until the day before notwithstanding that his attention had been drawn to the very point by DWF in correspondence, the last occasion being in the letter of 5th April 2020. Mr Kesar did not seek an urgent listing of his application, which he could have done by attending the daily urgent and short applications list before the Queen’s Bench Masters. Instead he marked the application notice “to be considered without a hearing” which would not be appropriate unless the parties were agreed. In the circumstances described at paragraphs 4 and 5 above the court directed the applications to be listed on 12 July 2019. Mr Kesar’s evidence that he wrote to the court to ask it not to list the applications is also incorrect. What Mr Kesar actually stated in his e-mail of the 3 July 2019 to my listing clerk was that having filed and served the claims on 2 July 2019 he “believed the hearing could be vacated”. At this point it must have been blindingly obvious to any competent solicitor that proceedings had been served without an extension of time for service having been granted and that regularising the situation was a matter of the upmost urgency. If Mr Kesar truly believed that he was waiting for the court to list his applications there is no explanation for his failure to contact the court or make any arrangements for these applications to be listed prior to the 1 August 2019 when the Defendant’s application to strike out was issued.
Once the Defendants’ application had been issued and served it was also obvious from the face of the application notice that the Defendant was seeking orders setting aside service of the claim form or the setting aside of any order which may have been made to extend the time for service of the claim forms yet still Mr Kesar took no steps to relist his applications or actively seek an extension of time for service of the claim forms and did not even address the issue in his witness statement of 6 December 2019 prepared in opposition to the strike out application.
Against this background the Defendant’s application to strike out the claims was always going to succeed unless Mr Kesar took some active steps to regularise the position before the strike out hearing, however he took none. In the circumstances I do not see this as a mere negligent failure to serve the claim within the required period. Mr Kesar’s conduct goes beyond that and continued down to the date of the strike out hearing. Mr Kesar could not have reasonably believed that he had done all that was necessary in this regard. Having specifically asked the court to vacate the hearing of his application to extend time the onus was on him to actively progress the matter. In my judgment Mr Kesar’s conduct in failing to serve the claim forms within the required period and then taking no effective steps to attempt to remedy the position before the strike out application was heard permits of no reasonable explanation. In the circumstances, in relation to this issue, I find the first stage of the test made out.