AN APPLICATION – AND ORDER – FOR A STAY OF PROCEEDINGS DOES NOT LEAD TO TIME FOR SERVICE OF THE CLAIM FORM BEING EXTENDED: A POINT TO WATCH

It was possible that we could get to the end of January without a claim form case being reported. It was, however, unlikely.  A failure to serve was one of the many issues considered by the Court of Appeal in Birley & Anor v Heritage Independent Living Ltd [2025] EWCA Civ 44.  The claimant had died after issue, but before service. The subsequent application for a stay and to amend proceedings did not mean that time for service of the claim form was extended. (There are other important aspects of this case that will be considered in later posts).  The fundamental point here is that the application, and order, for stay was found not to extend time for service of the claim form.

” [the judge rejected the claimants’ case that the application which had been made, for a stay, could be understood as or treated as including an application for an extension of that kind. District Judge Nicolle decided to set aside service of the claim form and declared that the court did not have jurisdiction to hear the claim on the ground of late service of the claim form.”

THE CASE

The original claimant (Ms Taylor) brought an action against the defendant, “Heritage”. The action was for breach of the GDPR Regulations, the Data Protection Act, misuse of private information and breach of confidence.  A claim form was issued which included a claim for personal injury.

THE PROBLEM WITH THE CLAIM FORM

Ms Taylor died prior for service and her solicitors applied for a stay of proceedings. On 14th December 2021 (after the date proceedings should have been served) the court granted a stay.  The order stated that an amended claim form and particulars of claim should be served by 17th March 2022.  These documents were served in Deceber 2021.

The defendant acknowledged service and then applied to set aside service and for the claim to be struck out “for late service pursuant to CPR r.3.4”.

THE STRIKING OUT OF THE CLAIM

The District Judge  “rejected the claimants’ case that the application which had been made, for a stay, could be understood as or treated as including an application for an extension of that kind. District Judge Nicolle decided to set aside service of the claim form and declared that the court did not have jurisdiction to hear the claim on the ground of late service of the claim form. She also ordered the claim to be struck out.”

THE APPEAL ON THIS ISSUE

It is important to note that the finding that the claim form had not been properly served was not subject to an appeal. The issue was whether the failure to serve in these circumstances was an abuse of process.

THE POINT TO NOTE

The crucial point to note here is that the application for a stay and to amend did not amount to an application to extend time for service of the claim form.  If a party wants to extend time in these circumstances  it must be clear in the application it cannot be “implied”.

AVOIDING THE PITFALLS IN SERVICE OF THE CLAIM FORM: WEBINAR 4th FEBRUARY 2025

Every year this blog covers numerous  cases where claimants (and occasionally defendants)  come to grief in relation to service of the claim form. The frustrating issue in relation to service issues is that most (if not all) of the problems are avoidable with a little care and with the appropriate knowledge of the rules and case law. This webinar looks very closely at the rules relating to service of the claim form and particulars of claim with the primary aim of making sure that you do not fall foul of the rules and serve properly and in time.  It looks at many examples of where things have gone wrong and provides clear guidance as to how to avoid problems.  

Booking details are available here. 

MATTERS COVERED IN THE WEBINAR

The aim of the webinar is to make sure you are aware of problem areas and how best to avoid them. It looks very closely at the rules relating to service of the claim form and particulars of claim with the primary aim of making sure that you do not fall foul of the rules and serve properly and in time.  It looks at many examples of where things have gone wrong and provides clear guidance as to how to avoid problems.

• Why do things go wrong so often in relation to service of the claim form
• “The address for service” – problem areas
• When must you serve on a solicitor?
• Identifying problems with service and heading them off
• What can you do if things go wrong with service