SERVICE OF THE CLAIM FORM – ERRORS AND PROBLEMS 5: SERVING THE PARTICULARS OF CLAIM LATE

This is the fifth time we have looked at the judgment in Occupiers of Samuel Garside House v Bellway Homes Ltd & Anor [2024] EWHC 1579 (KB).   This time we look at another “trap for the unwary” – the Particulars of Claim were served late.

WEBINAR ON SERVICE OF THE CLAIM FORM

This, and many other, cases will be examined in detail in a webinar towards the end of the year. The webinar, on the 19th November 2024, reviews the cases in 2024. Booking details are available here.

THE CASE

The claimants brought an action for damages following a serious fire at a block of flats.  There are two defendants.  Various extensions of time for service of the claim form were agreed.  .  The Master found that the claimants had failed to serve the claim form properly in accordance with the order extending time, he also rejected the claimants’ argument that an extension of time had been agreed. The claimants were also refused “relief from sanctions” in relation to their failure to serve properly. However the defendants had not made any application under CPR Part 11 to dispute jurisdiction.  This meant that, despite the claimants’ failures, the proceedings were still in existence.  However the claimants had served the Particulars of Claim late and made an application for an extension of time. In the meantime the defendants were considering make a (very late) application to dispute jurisdiction in relation to service of the claim form.

THE JUDGMENT ON THIS ISSUE

The Master did not determine the substantive issue. It was not wholly clear whether an application to extend time for service of the Particulars of Claim was governed by 3.9 and Denton principles, or by Part 11.  In any event the defendants could still make an application to extend time for disputing the jurisdiction.

 

    1. In these circumstances, it seems to me that the Defendants will have to decide whether they wish to apply to file acknowledgments of service out of time and to make a jurisdiction challenge (technically, if the defendants simply file them out of time, the Claimants will have to seek to set them aside). This could give rise to some complexity as to order of applications, and I set out below the orders which I am intending to make to seek to ensure that everything can be sensibly advanced before and decided by the court at once.

 

The Claimants’ Application for an extension of time for serving the Particulars of Claim

    1. This application is opposed by the Defendants on the basis that the Claimants are in breach of the November Order (and thus also of CPR7.4), where the Claim Form was issued at the end of some (but not other) applicable limitation periods, and where it is contended that the Claimants have delayed generally and this is not an “in-time” application but one made after the relevant time-limit expired. There is some authority – see the White Book notes at 7.4.2 and e.g. Venulum v Space 2013 EWHC 1242 – that the Court should approach the matter on a relief from sanctions CPR3.9/Denton basis, and Mr Sawtell seemed to concede that that was appropriate in these circumstances. The Claimants contend that any delay was short; the Defendants knew perfectly well the general case against them; no prejudice whatsoever has been caused to the Defendants; and the Defendants had indicated a preparedness in correspondence for the Claim Form and Particulars of Claim to be served nearly a month later; and, further, that any limitation problems (at least apart from the common-law non-personal injury claims) can be overcome by the application of section 33 (as well as the new section 4B) of the Limitation Act 1980 and that they would have a strong case under section 33 (including, they would say, because much of the substance of their claims is going to be investigated and fought out anyway). The Claimants contend that, even if there was a serious and substantial breach, and no good reason for it, it is just in all the circumstances of the case for relief from sanctions to be granted and the claim to be allowed to proceed. The Defendants contend that the Claimants are guilty of numerous delays and cannot show that it is just that an extension should be granted.

 

    1. I have decided that it is not appropriate for me to decide this question in this judgment. The jurisdictional issues can be well said to logically come first (and I do not have any formal application to set aside the service of the Particulars of Claim, and it may even be that any attempt to set them aside would itself have to involve a jurisdiction challenge under Part 11 and/or that the Claimants might seek to make sanctioning the service of the Particulars of Claim a condition of permitting the late filing of an acknowledgment(s) of service – but none of those matters have yet been argued before me and so I do not express any view on any of them); but, and also importantly, the questions of who should be granted what (if any) extensions of time involve considerations of material, merits and prejudice which are heavily inter-related.”

 

  1. It seems to me that this aspect and the questions of extension of time for acknowledgments of service and jurisdictional challenge should all be dealt with together; and I have provided below for directions to enable that to occur.