COURT REFUSES CLAIMANT’S APPLICATION FOR RETROSPECTIVE EXTENSION OF TIME TO SERVE THE CLAIM FORM:CLAIMANT’S ARGUMENTS THAT CPR 3.9 APPLIED FAILED TO FLY

Regular readers may be concerned that we have got through to the second week of February of the year and we have not yet had a claims form case.  (There are several in the pipeline.)  I am grateful to  barrister Katherine Howells for sending me a copy of the decision of Deputy District Judge Newstead Taylor in Waldie -v- Manchester Airport (21st April 2022) a copy of which is available here  Waldie v Manchester Airport PLC Ors_Approved Judgment_21.04.22.  The Court refused the claimant’s application for a retrospective extension when the claimant failed to serve the claim form in time.  The judgment provides an object lesson of the dangers of not paying close attention to service. It also emphasises the point that issues relating to service of the claim form are not considered under CPR 3.9 but CPR 7.6. Further even if 3.9 did apply this was not a case where the court would exercise its discretion.

“It is not always prudent to leave service until the last minute of the four-month window, and, in doing so, a claimant runs the risk of unforeseen problems”

THE CASE

The claimant was injured whilst a visitor at Manchester aiport.  There is a two year limitation period for such cases and proceedings were issued within the two years.  However no proceedings were served on the the third defendant within the four month period for issue.

The third defendant’s solicitors filed a defence, making their stance on service clear – that they had requested information as to service several times but received no response.

The claimant’s solicitors eventually confirmed that, due to an “administrative error”, service had not taken place on the third defendant.

THE CLAIMANT’S APPLICATION FOR AN EXTENSION OF TIME

The claimant applied for an extension of time. This was opposed by the third defendant.

THE CLAIMANT’S APPLICATION – USING THE WRONG TEST

The claimant’s application relied on CPR 3.9.  The judge considered the legal principles and case law in detail and concluded that the correct test is that in CPR 7.6.

In summary, I think it is fair to say this: the test to be applied in an application for an extension of time to serve a claim form is clearly that under CPR 7.6.  CPR 7.5 and 7.6 are a code. CPR 7.5 providing for service within four months. CPR 7.6 providing for extensions to that period if certain conditions or criteria are met.  I accept that the Vinos and Godwin v Swindon BC [2002] 1 WLR 997 §50  lines of authority have not been overruled and that the specific overrides the general, by which I mean that you cannot have recourse to CPR 3.9 to avoid the consequences of CPR 7.6.  The sole resort for the claimant in this matter is an application under CPR 7.6 (3) and CPR 3.9 is of no application”

THE COURT WOULD NOT EXERCISE THE CPR 7.6 DISCRETION

The claimant could not bring the case within the rigorous criteria of CPR 7.56.
26. The correct test is that set out at CPR 7.6(3)(a – c), which was set out in Mr Smith’s witness statement at paragraph 25, as follows:
“(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 –
 
  • the court has failed to serve the claim form; or
 
  • the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
 
  • in either case, the claimant has acted promptly in making the application.”
27. I also refer myself to the case of SMO (A Child) v TikTok Inc & Others [2022] EWHC 489 and the principles that are set out at paragraph 71(i – vii) in that regard. I adopt the entirety of 71 (i – vii) but I remind myself specifically of (i):
“(i)         The principle and, frequently, the only question is to determine whether there was a good reason for the claimant’s failure to serve the claim form within the period allowed by the rules.
 
(ii)          If there is a very good reason for the failure to serve within the specified period, an extension of time will usually be granted, for example, where the Court has been unable to serve the claim form or the claimant has taken all reasonable steps to serve but has been unable to do so.
 
(iii)         Conversely, the absence of any good reason for the failure to serve is likely to be a decisive factor against the grant of an extension of time.
 
(iv)         The weaker the reason for failure to serve, the more likely the Court will be to refuse to grant the extension.
 
(v)          Whether the limitation period applicable to the claim has expired is of importance to the exercise of the discretion since an extension has the effect of extending the period of limitation and disturbing the entitlement of the potential defendant to be free of the possibility of any claim…
 
(vii)        The fact that the person to be served has been supplied with a copy of the claim form or is otherwise aware of the claimant’s wish to take proceedings against him is a factor to be considered.
 
(viii)       Provided he has done nothing to put obstacles in the claimant’s way, a potential defendant is under no obligation to give any positive assistance to the claimant to serve the claim form so that the fact that the potential defendant has simply sat back and awaited developments, if any, is an entirely neutral factor in the exercise of the discretion”.
 
28. I remind myself, also, that D3 is, in essence, simply relying upon the relevant rules as noted in Kelly v Ralli Limited [2022] SCCO 2 WULK 102 § 34. The parties are agreed that this case is not a CPR 7.6(3)(a) case because the Court did not serve.  It is a CPR 7.6 (b) to (c) case, those subsections being conjunctive.  In relation to (b), I must consider whether or not the claimant has taken all reasonable steps to comply with CPR 7.5 and been unable to do so.  Drury v Carnegie [2007] EWCA Civ 497 § 36 established that the steps must be those taken within the four-month period for service.
29. It is my decision that the claimant has not taken all reasonable steps to comply with CPR 7.5. I come to that conclusion for the following reasons:
a. There is no evidence of any steps, whether reasonable or otherwise to comply with CPR 7.5 in respect of D3. The claimant served on the cusp of the four-month window on the first and second defendant.  There is no evidence of any steps taken in relation to D3.  This is a point that Ms Howells pressed upon me.
b. What we have is evidence of an administrative error, the claimant’s solicitors mistakenly thinking that D3 had been served already because the wrong certificate of service was put next to D3 on the solicitor’s system. That, however, does not explain what, if any, steps were taken in order to attempt service on D3 within that four-month window.  In fact, closer scrutiny of that certificate of service would have shown that it was not D3 who had, in fact, been served. 
c. It is not always prudent to leave service until the last minute of the four-month window, and, in doing so, a claimant runs the risk of unforeseen problems, see Drury v Carnegie40. It could be said that this has occurred here, albeit, my finding is that there is no evidence of any attempts at all to serve D3 within that window.  Accordingly, in short, I am not satisfied that the claimant took all reasonable steps to comply with Rule 7.5 and had been unable to do so.  I note, in particular, that an extension of time is not justified by the negligence of the solicitors as per SMO (A Child) v TikTok § 72(ii).

 

PROMPTNESS (OR RATHER THE ABSENCE OF IT)

30. As CPR 7.6(3)(b) and (c) are conjunctive, that is, in effect, the end of the matter but I will proceed to address subsection (c) on promptness. Promptness is always a matter to be decided on the facts of each case but I remind myself that a three-month delay is long, and only quite exceptional circumstances could fully explain or justify that, Drury v Carnegie 47.  Therefore, the claimant could be said to face an uphill struggle on the issue of promptness, the delay being somewhat in excess of three months.  I find that this was not brought promptly. In particular, in light of the chronology that I have set out in some detail, D3’s solicitors repeatedly brought the issue of service to the claimant solicitor’s attention.  At best, it appears to have been given cursory attention by the claimant’s solicitors.  In fact, the claimant’s solicitor accepts, at paragraph 11 of his witness statement, that it was an error on his part to fail to review the file at that point in time.  Therefore, it is my decision that the application is also not prompt.

IF CPR 3.9 DID APPLY… IT WOULD NOT HAVE HELPED THE CLAIMANT

31. Bearing that in mind and bearing in mind what I have already said about CPR 3.9, the position is that the application will be dismissed. For the avoidance of any doubt, and in case I am wrong, albeit I do not think I am, I deal with CPR 3.9, shortly, in the following way: it was a serious and significant breach to fail to serve within the four months, and, thereafter, to delay.  There is no good reason for the failure to serve within the four months.  The explanation of an “admin error” is an explanation only of the claimant’s misbelief that service had been effected.  When I look at all the circumstances of the case and take into account the overriding objective (CPR 1.1), I remind myself that time limits are important.  We have the time limit here of four months for service and we also have the limitation period which expired. Taking everything together and in the round, I am not satisfied that relief from sanctions should be granted.
32. The Application is dismissed.