WHY APPLYING FOR AN EXTENSION OF TIME TO SERVE THE CLAIM FORM IS A DANGEROUS BUSINESS: A CASE TODAY AND SOME REMINDERS

September 29, 2022 · by · in Applications, Extensions of time, Service of the claim form

The judgment of HHJ Hodge KC in Harrington Scott Ltd v Coupe Bradbury Solicitors Ltd (PROFESSIONAL NEGLIGENCE – Solicitors – Loss of opportunity to pursue claim to trial – Damages – Defendant’s application to strike out and for summary judgment) [2022] EWHC 2275 (Ch) is 283 paragraphs long. Here I want to concentrate on one paragraph – relating to service of the claim form in an earlier action.  The earlier case provides an object lesson in the dangers of applying to extend time for service of the claim form. The extension was later set aside, the entire action failed.

 

THE CASE

The claimant brought an action against their former solicitors alleging negligence in the pursuit of debts owed to the claimant in an action that had been struck out.  The claimant’s action was struck out for manifold reasons. Here, however, I want to look at the problem that had occurred in the action that those solicitors had issued.

 

EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM WAS SET ASIDE

The “original” action failed after an application was made to serve proceedings out of the jurisdiction.  Service outside the jurisdiction was not the issue, however.  An application had been made to extend time for service.  That had been granted on a without  notice application, but was set aside on a later inter-partes hearing.

  1. The underlying claim was duly commenced, in the sole name of the claimant, in the Queen’s Bench Division of the English High Court against Kinross Gold and Kinross Far East on 2 March 2015. By an order made without notice on 5 August 2015, Master Cook gave permission for service out of the jurisdiction on both Kinross Gold and Kinross Far East, and for service on Kinross Far East by the alternative means of service on Kinross Gold in Canada. He also extended the period for service of the claim form. As explained in Master Cook’s later written judgment dated 27 May 2016, after service was effected on both Kinross Gold and Kinross Far East in Canada, those companies successfully applied for an order setting aside that part of the permission order which had extended the period for service, thereby invalidating the service that had been effected. There was a good deal of evidence served in respect of Kinross’s application on both sides; and the bulk of the bundle which was before Master Cook is before this court. After the permission order was set aside, the claimant, the BVI company, and Mr Vickers ultimately entered into a compromise with Kinross Gold and Kinross Far East on about 11 October 2016 in full and final settlement of the underlying claim in consideration for Kinross’s agreement not to enforce the costs order which they had obtained against the claimant.

DOES IT NEED SAYING AGAIN?  EX-PARTE APPLICATIONS TO EXTEND TIME ARE A VERY DANGEROUS STEP

We saw a claimant coming to grief earlier this year when the Court of Appeal upheld a decision to set aside an order extending time for service of the claim form, Qatar Investment and Project Development Holding Company & Anor v Phoenix Ancient Art SA (Rev1) [2022] EWCA Civ 422.

In Al-Zahra (PVT) Hospital & Ors v DDM [2019] EWCA Civ 1103 the Court of Appeal allowed an appeal by defendants who objected to an extension of time being granted for service of the claim form. Lord Justice Haddon-Cave observed:-

 

“… no practitioner should now be unaware of the dangers of seeking to extend the life of a claim form on a without notice basis in circumstances where a limitation period is fast approaching.”

The issue was also considered by Sir David Eady in Medhi Kohsravi -v- British American Tobacco PLC [2016] EWHC 123 (QB) where he indicated that he would have set aside the order extending time (it not being a direct issue in the judgment since the action failed on other grounds).

“The overriding objective requires that the disciplines imposed by the CPR should not be allowed to lapse unnecessarily. Any delay in the normal timetable must be justified by the applicant. Such extensions should certainly not be granted as a formality or go through “on the nod””