SERVICE OF THE CLAIM FORM: GOOD NEWS FOR THE CLAIMANT (FOR A CHANGE)

NB – THIS DECISION WAS OVERTURNED ON APPEAL – SEE  Secretary of State for Levelling Up, Housing and Communities v Rogers [2024] EWCA Civ 1554

In Rogers v Secretary of State for Levelling Up, Housing and Communities & Anor [2023] EWHC 2528 (Admin) the High Court granted an extension of time for service of the claim form.  The facts were unusual.  Court delay was the primary reason for the failure to serve in time.  The steps that the claimant’s solicitors took in chasing the court were an important factor in the court’s exercise of its discretion.

“Whilst service took place significantly out of time, having regard to all the unusual facts of this case, I conclude that the Claimant took reasonable steps to effect valid service but due to matters outside his control and for good reason, his representatives were unable to do so. I therefore exercise the Court’s discretion in extending the time for service of the sealed claim form up to and including the last date on which the sealed claim forms were served upon the Defendants.”

THE CASE

The claimant sought permission to seek a statutory review against a planning decision. The time limit for  issue and service of these reviews is six weeks.  The claimant lodged proceedings but these were not issued within the six week period.  The claimant’s solicitors  chased the court  continuously.  The court issued outside the six week limit and the claimant then served immediately.

THE JUDGMENT ON EXTENDING TIME

Karen Ridge, sitting as a High Court judge,  considered the claimant’s application to extend time and held that the facts were unusual. The delay was due to the court and time for service should be extended.

1. 1. The s.288 application was commenced within the 6-week statutory period which ended on 4 May 2023. The relevant documents were filed with the Court on 18 April 2023. Paragraph 4.11 of PD54D provides that: “The claim form must be served within the time limited by the relevant enactment for making a claim for planning statutory review set out in paragraph 1.2.” The ‘relevant enactment’ referred to in paragraph 1.2 is s.288 TCPA 1990. Thus, service of the claim form must also be effected within the same six-week period for making the claim.

1. 1. The Claimant was unable to serve the sealed papers upon either of the Defendants within the statutory 6-week period due to the Court not issuing the sealed papers until after expiry of that time limit. The Court did not acknowledge receipt of the documents when they were initially sent on the 18 April 2023 and on 2 May 2023, the Claimant’s legal representatives chased matters by email. Between 10 May 2023 and 14 June 2023, the Claimant’s representatives contacted the court on no fewer than 10 occasions enquiring about the sealed documents. The Court finally issued the s.289 appeal on the 15 June 2023 but the sealed s. 288 claim form was not issued until 11 July 2023. The s.289 documents were served on the second Defendant on 11 July 2023 and on the first Defendant on 12 July 2023.

1. 1. The Court has the power to extend the time for service of the claim form under CPR r.3.1(2)(a) if application is made. The test to be applied on an application for an extension of time for service of a claim form in the context of a judicial review challenge has been recently clarified by in R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355. Carr LJ (as she then was) distinguished service of a claim form from other procedural steps, given that service of originating process is the act by which the Defendant is subjected to the jurisdiction of the Court. As such the principles established
      in Denton and Mitchell^[1] are not applicable.

1. 1. Carr LJ went on to opine that the rules of the Court apply with equal force to public interest cases as much as to other types of claims; that there is palpable prejudice to the Defendant of the loss of an accrued limitation defence and that when considering an application for extension it is not appropriate to take any view on the merits of the claim. Carr LJ concluded that:

“It is important to emphasise (again) that valid service of a claim form is what founds the jurisdiction of the court over the defendant. Parties who fail, without good reason, to take reasonable steps to effect valid service, in circumstances where a relevant limitation period is about to expire, expose themselves to the very real risk of losing the right to bring their claim.”

1. 1. I agree with Mr Fry that there is no logical basis for adopting a different approach to the determination of extension of time for service applications in planning statutory review claims than in judicial review claims.

1. 1. The sealed claim form should have been served by 4 May 2023. It was in fact served on 12 July 2023, almost 10 weeks late. Mr Fry criticises the Claimant for use of an incorrect form and for not specifying that it was a claim under s.288 of the Act. The claim was however issued on a Part 8 claim from, and it was accepted by the Court. Whilst the Claimant did not, in terms, impress upon the Court the urgency of sealing the claim form, the Claimant’s representatives were entitled to a reasonable expectation that the form would be sealed in a timely manner and that they would be able to serve the sealed form before 4 May 2023.

1. 1. On the 2 May 2023 the Claimant’s representative emailed the Court office to chase matters. The email was marked “high importance”. The deadline of 4 May was passed two days later, and the Claimant’s solicitor had still not received a sealed form. On the 11 May 2023, in a telephone call, the legal representative was assured that the Court would issue the claim “after lunch” and they were told “not to worry about the date”. A further email was sent on 18 May 2023 referring to earlier communications, stating that the papers had been lodged on 18 April and “bearing in mind it is an application for review, there is some urgency”.

1. 1. On the 22 May 2023 the Claimant’s representative made two telephone calls to the Court office and received an assurance that the matter would be sent to the court lawyer that same day to enable the lawyer to check the claim before issue. Further chasing telephone calls were made on 25 May, 30 May, 7 June and 9 June. On the 14 June 2023 the claimant’s legal representative sent an email requesting an update and saying that they had attempted, without success, to telephone the Court office that week. The s.288 claim form was eventually issued and sealed on the 11 July 2023 and served on the 11 and 12 July 2023 on the first and second defendants respectively.

1. 1. In these circumstances I am entirely satisfied that the failure to serve a sealed claim form in time was due to matters outside the control of the Claimant and his representatives. The behaviour of the legal representative in continuing to chase the Court for a sealed claim form was reasonable. The delay did not stem from the use of an incorrect form. The representative had marked the email with the Claim form of ‘high importance’ and they continued to chase matters which spoke of the sense of urgency in obtaining a sealed form. It is difficult not to have sympathy with the Claimant in such circumstances.

1. 1. Unlike in the Good Law case, the Claimant did not choose to serve an unsealed claim form on the Defendants. However, that is unsurprising considering the assurances given by the Court that the matter was about to be dealt with. Likewise issue of the application for extension of time came after the expiry of the deadline but again, given the focus on obtaining a sealed form and the assurances given, this is unsurprising.

1. Whilst service took place significantly out of time, having regard to all the unusual facts of this case, I conclude that the Claimant took reasonable steps to effect valid service but due to matters outside his control and for good reason, his representatives were unable to do so. I therefore exercise the Court’s discretion in extending the time for service of the sealed claim form up to and including the last date on which the sealed claim forms were served upon the Defendants.