THE IMPORTANT DIFFERENCE BETWEEN A PROSPECTIVE AND RETROSPECTIVE APPLICATION TO SERVE A CLAIM FORM: “CLEAR WATER” BETWEEN THE TWO TESTS: COURT OF APPEAL OVERTURNS ORDER SETTING ASIDE A PROSPECTIVE APPLICATION FOR SERVICE

July 27, 2022 · by · in Appeals, Extensions of time, Service of the claim form

In ST v BAI (SA) Trading As Brittany Ferries [2022] EWCA Civ 1037  the Court of Appeal overturned a decision, itself made on appeal, where a prospective application to extend time for service of the claim form was set aside. The Court held that the initial decision by the admiralty registrar, to make an order extending time, was well within the realms of the appropriate exercise of their discretion. The judge’s decision to overturn the registrar’s decision went beyond the scope of the way in which the appellate court should exercise its powers in these matters.

“It can be seen immediately that there is clear water between the test to be applied on an application for an extension of time to serve a claim form i) before and ii) after the expiry of time for service under CPR 7.5. Specifically, unlike on a retrospective application, a court can allow an application to extend time prospectively without being satisfied that the claimant has taken “all reasonable steps” to comply with CPR 7.5″

THE CASE

The claimant brings an action claiming that she was the victim of a sexual assault whilst in her cabin on board one of the defendant’s ferries.

A two year limitation period applied. The claimant issued proceedings, shortly before the time for expiry of the claim form a prospective application was made for an extension of time to to serve the claim form.

This application was granted by the admiralty registrar.  It was later upheld by the registrar on an application by the defendant to set it aside. The defendant appealed to the High Court judge who allowed the appeal.

THE CLAIMANT’S SUCCESSFUL APPEAL TO THE COURT OF APPEAL

 

The Court of Appeal allowed the claimant’s appeal. The registrar’s decision was within the scope of their discretion.  The appellate court should not have interfered with the exercise of that discretion.

 

THE COURT OF APPEAL JUDGMENT ON THIS ISSUE

The law
    1. CPR 7.6 provides:
“7.6 – Extension of time for serving a claim form
(1) The claimant may apply for an order extending the period for compliance with rule 7.5
(2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made –
a) within the period specified by rule 7.5; or
b) where an order has been made under this rule, within the period for service specified by that order.
(3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –
a) The court has failed to serve the claim form; or
b) The claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
c) In either case, the claimant has acted promptly in making the application.
(4) An application for an order extending time for compliance with rule 7.5 –
a) Must be supported by evidence; and
b) May be made without notice.”
    1. It can be seen immediately that there is clear water between the test to be applied on an application for an extension of time to serve a claim form i) before and ii) after the expiry of time for service under CPR 7.5. Specifically, unlike on a retrospective application, a court can allow an application to extend time prospectively without being satisfied that the claimant has taken “all reasonable steps” to comply with CPR 7.5. There is, as it was put in the leading case of Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 1 WLR 3206 at [17] (“Hashtroodi“), a “striking” “contrast” between the two regimes.
    1. The Appellant’s application for an extension of time was made prospectively, under CPR 7.6(2). As such, it is, strictly speaking, inapposite to speak of a “failure” to serve a claim form within time. Rather, the Appellant needed a (prospective) extension of time in which to serve.
    1. CPR 7.6(2) has been examined in a number of well-known cases, including Hashtroodi; Collier v Williams [2006] EWCA Civ 20, [2006] 1 WLR 1945; Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203, [2008] 1 WLR 806 (“Hoddinott“); FG Hawkes (Western) Ltd v Beli Shipping Co Ltd [2009] EWHC 1740 (Comm), [2009] All ER D 207; Cecil; Al-Zahra (PVT) Hospital and Others v DDM [2019] EWCA Civ 1103, [2019] 6 WLUK 444 (“Al-Zahra“); and, most recently, Qatar Investment & Projects Holding Co v Phoenix Ancient Art SA [2022] EWCA Civ 422, [2022] 3 WLUK 432 (“Qatar“).
    1. For ease of reference, I summarise the relevant general principles as follows:
i) The defendant has a right to be sued (if at all) by means of originating process issued within the statutory period of limitation and served within the period of its initial validity of service. It follows that a departure from this starting point needs to be justified;
ii) The reason for the inability to serve within time is a highly material factor. The better the reason, the more likely it is that an extension will be granted. Incompetence or oversight by the claimant or waiting some other development (such as funding) may not amount to a good reason. Further, what may be a sufficient reason for an extension of time for service of particulars of claim is not necessarily a sufficient reason for an extension for service of the claim form;
iii) Where there is no good reason for the need for an extension, the court still retains a discretion to grant an extension of time but is not likely to do so;
iv) Whether the limitation period has or may have expired since the commencement of proceedings is an important consideration. If a limitation defence will or may be prejudiced by the granting of an extension of time, the claimant should have to show at the very least that they have taken reasonable steps (but not all reasonable steps) to serve within time;
v) The discretionary power to extend time prospectively must be exercised in accordance with the overriding objective.
    1. Following up on the question of limitation, as noted in Qatar at [17(iv)] (and Al-Zahra at [52(3)]), it was stated in Cecil (at [55]) that a defendant’s limitation defence should not be circumvented save in “exceptional circumstances”. This is a phrase that needs to be approached with care; it is one about which the judge himself expressed reservations. At their outer limit, the words “exceptional circumstances” can be taken to mean “very rare” (or “very rare indeed”). In the present context, however, the phrase should not be taken to mean any more than its literal sense, namely “out of the ordinary”. It means, as identified for example in Hoddinnott at [52], that the actual or potential expiry of a limitation defence is a factor of considerable importance. The factors in favour of an extension of time will have to be, either separately or cumulatively, out of the ordinary. Only in this way can the phrase “exceptional circumstances” be reconciled with the primary guidance in Hashtroodi (at [18]) and [22]) that the discretion under CPR 7.6(2) is to be exercised in accordance with the overriding objective and in a “calibrated” way, as emphasised in Qatar at [17(iii)]. It is neither helpful nor necessary to go further in terms of guidance, by reference to a need for “powerful good reason”, as the judge suggested, or otherwise.
    1. For the sake of completeness, such an approach is consistent with Cecil, properly understood. In Cecil, described by Rix LJ (at [98]) as “commercial litigation on a grand scale”, it was held that the fact that an extension of time was needed to obtain funding (or rather because of a desire that funding be in place for the whole of the litigation so as to eliminate or minimise any risk to the claimants) was not a good reason. The writ could and should have been served with an application thereafter for a stay if necessary (see in particular [27b)], [28b)], [42], [43], [51], [96] and [97]). In what were obiter remarks addressing the relevance of limitation periods, Stanley Burnton LJ (at [48]) emphasised that there was no need for a claimant to establish that all reasonable steps had been taken. He referred to the comments of Rix LJ in Aktas v Adepta [2011] QB 894 at [91], where Rix LJ referred to the need for strict regulation of the period for service to avoid the statutory limitation period becoming “elastic at the whim or sloppiness of the claimant or his solicitors”. None of this equates with a need for there to be “exceptional circumstances” in the sense of circumstances that are very rare.
    1. Finally, and self-evidently, the result of an application under CPR 7.6(2) in each case will be highly fact-specific. A comparison with the outcome on the facts of other cases is unlikely to be instructive.
Discussion
    1. It is important at the outset to identify the proper role of the judge, sitting in an appellate capacity. The appeal was limited to a review; it was not a re-hearing (see CPR 52.21(1)). Further, it was a review of an exercise of discretion by the admiralty registrar on a procedural matter. The appellate court’s function was thus not to carry out a balancing task afresh, but to ask whether the decision of the judge below was wrong by reason of some identifiable flaw in the treatment of the question to be decided, such as a gap in logic, a lack of consistency or a failure to take account of some material factor which undermines the cogency of the conclusion and which takes the decision outwith the generous ambit within which a reasonable disagreement is possible (see for example R (Good Law Project Ltd) v Secretary of State for Health and Social Care [2022] EWCA Civ 355, [2022] 1 WLR 2339 (“Good Law“) at [37]).
    1. The essential question for the judge was therefore whether the decision of the admiralty registrar to extend time or, more accurately, to refuse to set aside the order extending time, was one which fell within the range of reasonable decisions open to him.
    1. A rigorous approach to the limited scope of the appellate function may be of particular importance in the context of applications under CPR 7.6(2). In some cases, for example, the result of reversing a decision to grant an extension of time for service may be to deprive the claimant of the opportunity to issue a fresh claim within the relevant limitation period(s). Although this is not such a case, here the Appellant can point to the fact that, when the admiralty registrar granted the extension of time (on 5 August 2020), there were still nine days in which she could have effected service in France. Had the admiralty registrar rejected the application, then she would still have had the opportunity to serve in time (by immediately reverting to Portsea and insisting that the huissier’s quotation at £2,000 be accepted).
    1. As set out above, at no stage was it suggested that the admiralty registrar incorrectly identified the law. Indeed the judge accepted that the admiralty registrar had correctly stated the principles to be applied. The admiralty registrar thus took express account of BAI’s right to be sued by means of originating process issued within the statutory period of limitation and served within the period of its initial validity of service, and recognised the need to justify departure from this starting point. In terms of the exercise to be carried out in practice, the admiralty registrar put it neatly: the exercise is essentially first to evaluate the reason, and then to put that reason into a wider context, which requires consideration of the overriding objective and the balance of hardship to the parties.
    1. That is precisely what the admiralty registrar then went on to do. He considered first the reason for the purpose of the exercise identified in the authorities. Contrary to the judge’s understanding, it is clear that the admiralty registrar considered the reason to be difficulties with, and not impossibility of, service. This is apparent in particular from the clear wording of [8]:
“Difficulties with service of the claim form are undoubtedly capable of being a good reason. There is plenty of authority for that, and that was the situation here. There is no reason to doubt Miss McKenna’s evidence on this…”
    1. He evaluated the strength of the reason, concluding that it was neither weak not strong, but “middling good” and nevertheless still a good reason.
    1. The judge was wrong to find that that conclusion had “no reasonable foundation in the facts”.
    1. First, there were undoubtedly difficulties with service. Putting to one side Tozers’ unexplained failure to answer promptly whether they were instructed to accept service, Ms McKenna considered that it would not be safe to use the Foreign Process Service. She turned to Portsea which, through Mr Warburton, assured her repeatedly that Portsea would be able to secure service in time. Then, 10 days before the last day for service, and out of the blue, Ms McKenna was informed that that would not be possible, save on unacceptable terms, by paying some £2,000 (not including translator’s fees).
    1. The judge appears to have considered that there were no difficulties because that was a sum that it would have been reasonable to pay – it was in his words (only) “somewhat high”. However, it was at the very least open to the admiralty judge to take a different view. This was a relatively modest personal injury claim. Portsea described the quotation as “colossal and completely unrealistic”. (That view would appear to have been fully justified, given the fixed charge regime referred to above.) The question of reasonableness was always one of fact and degree for the admiralty judge to evaluate. The admiralty registrar was entitled to consider that, even in the context of an expired limitation period, it was reasonable for Aegis to opt to make a prospective application for an extension of time for service, rather than to pay what Ms McKenna was being told was a ridiculous fee. In the light of Tozers’ approach revealed in the correspondence, it could reasonably have been concluded that such expenditure would be challenged as disproportionate in any costs assessment in which it was sought to be recovered from BAI.
    1. Seen in this light, it was artificial to speak of the Appellant, through her solicitors, making “choices” not to serve in the initial six month period of the claim form’s validity. It was open to the admiralty registrar to consider that the Appellant had, in reality, no choice, or that the choice to seek an extension, rather than pay a disproportionate and potentially irrecoverable fee, was a reasonable step to effect service in the circumstances.
    1. Cecil does not support BAI’s position in this regard, not least because the landscape there was completely different, but also because this was not a question of waiting for funding for the whole litigation so as to eliminate risk for the Appellant. Rather, it was a question of being unable to find a huissier to effect service in France in time at reasonable and proportionate cost.
    1. It is right that Ms McKenna had not commenced her enquiries for service abroad until three weeks before service was due, as the admiralty judge expressly recognised. However, the admiralty registrar was entitled to conclude, as he did, that this factor did not trump every other factor, and to consider that it was relevant that in normal times three weeks would in fact have been sufficient. That three weeks would normally have been adequate was a finding amply made out on the facts. Ms McKenna was assured no less than three times by Portsea that such a period would indeed suffice. The judge made much of what he described as the “inevitable and well-known capacity for delay in France in July or August”. However, Portsea was assuring Ms McKenna in July that service could be effected in three weeks and the evidence from the Chamber of Court Bailiffs for the Department of Finistere was that there always had to be a huissier on duty for urgent work, including in July and August, and finding a huissier to effect service should not be difficult.
    1. It appears to have been the judge’s view that it was incumbent on Aegis, in effect, to serve the claim form immediately on issue, given the limitation position. The limitation position was of course a factor of overarching importance, and the reasonableness of Aegis’ conduct needed to be assessed in that context.
    1. However, it was not a case of Ms McKenna doing nothing about service of the claim form until three weeks before the expiry of its validity, or acting unreasonably in not taking steps to arrange service as soon as the claim form was issued.
    1. At the outset, Ms McKenna recognised the consequence of service of the claim form, namely that it would trigger the need to serve particulars of claim and a medical report within 14 days. She knew specifically that Tozers considered the medical evidence to be “integral” to any assessment of liability (even if she did not understand why that was the case). During the correspondence, Mr Hayes repeatedly referred to the importance of the medical evidence. It was not unreasonable for Ms McKenna to seek to obtain the necessary medical evidence, or an extension of time for serving the particulars of claim, before serving the claim form for so long as it did not create a real risk of being unable to serve the claim form in time. When it became clear that there would be delays in drafting the particulars of claim, a request was made (on 14 May 2020) for BAI to agree to an extension of time for service of the particulars of claim. Tozers said on 15 May 2020 that it would take instructions but did not revert on the point within the next fortnight. On 27 May 2020 Ms McKenna repeated the request. On 4 June 2020 Tozers indicated that consent would not be forthcoming.
    1. On 10 June 2020 Ms McKenna made the first of a series of requests for Tozers to indicate whether it was instructed to accept service of the claim form, a copy of which was of course already in their possession. It was reasonable for her to expect that Tozers might be so instructed. As Males LJ commented when granting permission to appeal:
“On the face of things, it is surprising that a company running a daily service to an English port should refuse to accept service of proceedings by a passenger”.
    1. It would have been a step which would obviously have saved time and costs. It was not unreasonable for Ms McKenna to wait for a reasonable period of time for an answer.
    1. The judge took the view that the “obvious implication” from Tozers’ letter on 4 June 2020 was that BAI was standing on its right to be served out of jurisdiction. I would not accept that but in any event, it is clear that Ms McKenna, to Tozers’ knowledge, did not see it that way – hence her subsequent requests. And even if that was BAI’s position on 4 June 2020, there was no reason why that position could not change, for example in the light of receipt of Dr Gibbons’ report on 22 July 2020.
    1. There was no explanation for the failure to answer Aegis’ repeated enquiries in June as to whether Tozers was instructed to accept service until 15 July 2020 and the failure to answer the renewed enquiry on 22 July. As Ms Prager pointed out, there was no obligation on BAI positively to assist the Appellant in effecting service, provided that it had not done anything to place obstacles in her path (see Good Law at [57]). But there was no apparent excuse for BAI’s failure to respond timeously, one way or the other, to Ms McKenna’s question. Ms Prager was bound to accept that the failure to respond promptly could, at least on one view, be seen as tactical manoeuvring on the part of BAI.
    1. It was also reasonable for Ms McKenna to rely on Portsea’s repeated assurances, until the August email, that service could be effected in France in time.
    1. None of this detracts from the important fact that, as the admiralty registrar stated, Aegis might prudently have commenced the process of instructing Portsea earlier than occurred, given the limitation position and particularly when faced with silence in response to the request to Tozers to accept service in June. But Tozers’ failure to respond promptly in June contributed to the ultimate inability to serve in time at reasonable and proportionate cost.
    1. In short, the admiralty registrar’s identification and evaluation of the reason for the need for an extension of time for service of the claim form had a solid foundation. It was open to him properly to conclude that the difficulties in service amounted to a “middling good” reason. It is important always to remember that a claimant seeking an extension of time prospectively under CPR 7.6(2) does not have to establish that all reasonable steps had been taken. Other judges might have reached a different conclusion as to whether or not there was a good reason; but that is not the test. The admiralty registrar’s evaluation fell squarely within the range of reasonable assessments open to him.
    1. In these circumstances, it did not fall to the judge to carry out the calibration exercise afresh (and it is clear that he would not have gone on to do so, had he upheld the admiralty judge’s conclusion on good reason).
    1. As to the overall evaluative exercise to be carried out under the overriding objective, there is no proper basis on which to interfere with the admiralty registrar’s balancing out of the various factors. The judge himself concluded that the expiry of the limitation would not have been sufficient to outweigh good reason, had such a reason existed. That conclusion was not challenged by way of Respondent’s Notice.
    1. The admiralty registrar calibrated the good reason that he considered to exist, namely difficulties in service, alongside the following additional relevant factors:
i) The limitation period had expired, as he had understood at the time of making the order of 5 August 2020;
ii) The application to extend time was made promptly;
iii) Tozers had been provided with a copy of the claim form, a full letter of claim and a medical report. BAI had therefore suffered no prejudice in the conduct of the claim;
iv) By contrast, if the order extending time were to be set aside, the Appellant would lose her cause of action against BAI, which would add considerably to the distress she had already suffered.
  1. It was fully open to him to conclude in all the circumstances that the balance of hardship was in favour of the Appellant and that it would be in accordance with justice and proportionality to allow the claim to go forward.
  1. The admiralty registrar’s decision was therefore not plainly wrong; rather it was within the generous ambit where reasonable decision-makers may disagree.
Conclusion
  1. For these reasons, I would allow the appeal.
Tags: , ,