Civil litigation brief

Applications to extend time for service made within the time period for service

The new rules did nothing to change the principles relating to applying for an extension of time for service of the claim form. This remains a very dangerous step for a claimant to take. It is imprudent to assume that an application to extend time for service of the claim form made prospectively will be granted. More dangerous still for the claimant, if the application is granted the defendant can seek to set aside (to do so involves making an application to dispute the court's jurisdiction, see 'Civil litigation brief' SJ 21 December 2007).

The hard line in Hashstroodi

In Hashtroodi v Hancock [2004] EWCA Civ 652 (CA 25/5/2004) the following principles were set out in relation to a consideration of prospective applications.

The court must consider the reason for failure to serve the claim form

This was not because of a threshold requirement to show good reason but because the overriding objective requires the court to deal with cases 'justly'. It is not possible to deal with an application for an extension of time under CPR 7.6(2) without knowing why the claimant has failed to serve the claim form within the specified period.

The court will adopt a 'calibrated' approach

The pre-CPR case law meant that a plaintiff who was unable to show good reason for not serving in time failed at that threshold.

The CPR required a more calibrated approach to be adopted. If there is a very good reason for the failure to serve the claim form within the specified period then an extension of time will usually be granted.

The court's approach if the failure is due to the requirement being overlooked

The judgment offered little comfort for a solicitor applying for an extension of time because the requirement to serve was overlooked.

The court should be wary of the temptation to find that justice requires a short extension of time

The court recognised the temptation to take the view that: 'Justice requires a short extension of time to be granted even where the reason for the failure to serve is the incompetence of the claimant's solicitor, especially if the claim form is substantial. But it should not be overlooked that there is a three-year limitation period for personal injury claims, and a claimant has four months in which to serve his or her claim form. Moreover, the claim form does not have to contain full details of the claim. All that is required is a concise statement of the nature of the claim. . .. These are generous time-limits.'

No general guidance

The court declined to give any general guidance for applications in these circumstances. However in the absence of any general checklist in the rules the only general guidance that was appropriate was that the extension of time should be exercised having regard to the overriding objective. The court declined to extend time on the facts of the current case.

Marshall Rankine v Maggs: Hashtroodi must be strictly applied

In Marshall the Court of Appeal considered the Hashstroodi discretion afresh in a case where the claimant had served on an address at which the defendant had never, in fact lived and, thereafter applied for prospective application of time for service of the claim form. The court held that:

 The claimant's belief that the defendant lived at the address where the claim form was served was not a reasonable belief.

 Service of the claim form is a crucial step in proceedings. If the claimant mistakenly serves on an address which he mistakenly believes is the last known address of the defendant the court must consider the reasonableness of that belief.

 If the claimant is misled by the defendant as to his residence then court is likely to hold that the claimant had reasonable grounds for his belief.

 However it is incumbent on a claimant to take reasonable steps to ascertain a defendant's last known residence. What is required must depend on the circumstances of the case. (And remember the new rules impose an obligation on the claimant to take reasonable steps to find the new address if he has reason to believe that the defendant's address may have changed).

 It is dangerous to make assumptions. In the current case the claimant did not know the address for service was the last known residence he assumed it was. There was no real basis for believing it was the defendant's residence, he had been invited to a business meeting there and it had been referred to by the defendant as 'his new address'. He could point to nothing about the address which appeared to indicate that the defendant was living there as his residence at the time.

On that basis it was not appropriate for the court to exercise its discretion under CPR 7.6(2).

The importance of the reason for the failure to serve the claim form

Further guidance on the Hashtroodi principle was given in the judgment in Leeson v Marsden and United Bristol Health NHS Trust, (2007) 1 All ER 191. One of the issues there was whether an order should have been made under CPR 7.6(2). The Court of Appeal observed of the reason why the claimant did not serve the claim form in the first place:

'That this is the critical enquiry that the court must undertake in these cases. The strength or the weakness of the reason for the failure to serve is not one of a number of factors of roughly equal importance to be weighed in the balance. The exercise of going through the check list of factors set out in CPR 1.1(2) will often not be necessary, if, as in the present case, there is no reason to justify the failure to serve the claim form in time, it should normally not be necessary to go further.'

The court went on to state: 'It should clearly be understood, therefore, that where there is no reason, or only a very weak reason, for not serving the claim form in time, the court is most unlikely to grant an extension of time. It is no answer to say [as the district judge said in the current case] that to insist on service within the time specified by the rules is to adopt at 'technical' approach. In a sense, all rules may be said to be 'technical'.'

Glass v Surrendran

The point about the need for a good reason was further reiterated in the court's decision in Glass v Surrendran [2007] 1 All ER 191. The claimant had obtained an extension of time on the grounds that the papers were with counsel to draft the particulars of claim and then had to be sent to the client for approval. Further delay was caused by the need for obtaining an accountant's report.

The Court of Appeal had no difficulty in finding that the reasons given were not good reasons for delay in service of the claim form. The reasons given may have justified an extension of time for service of the particulars of claim but could not justify any delay in service of the claim form.

A confusing step '“ the decision in Hoddinnott

In the case of Hoddinott v Persimmon Homes [2007] EWCA Civ 1203 the Court of Appeal considered the issue of whether a district judge should have set aside an extension of time to serve the claim form. The case was decided on the basis that, to challenge issues of service, the defendant had to issue an application to dispute the jurisdiction.

The Court of Appeal went beyond this however and stated that they would exercise their discretion to extend the claim form in a case where:

 There was no good reason for the claimant's failure to serve the claim form. The claimant should have served and then sought agreement, or a court order, for an extension of time to serve the claim form.

However,

 in the current action the action was not time barred (it was a 12-year limitation period under deed).

 A copy of the claim form had been sent to the defendant prior to the expiry of the four-month period.

No 'false sense of security' argument

The court was anxious to stress that its decision did not involve any watering down of earlier principles asserting that extensions of the claim form should not be made readily.

Further the court considered an argument that the granting of the ex parte order meant that the courts had given the claimant a 'sense of security' and it had relied upon the order in its conduct. The court in Hoddinot observed:

'In our judgment the time has come to put the 'false sense of security' point firmly to rest . . .. Thus if a claimant applies for and obtain an extension of time for service of the claim form without giving notice to the defendant, he does so at his peril. He should know that an order obtained in such circumstances may be set aside. He can take no comfort from the fact that the court has made the order. He cannot be heard to say subsequently that it was the court's fault that the order was made.'

Limitation

Limitation can be a relevant factor in determining whether or not to extend a time for service. A number of principles were stated:

 Where there is doubt as to whether a claim is statute barred since the date on which the claim form is issued the court should not seek to resolve the issue on an application to extend time. In such a case a court should regard the fact that an extension could disturb a defendant who, by now, may have assumed that proceedings can no longer be issued.

 When the extension of time will not extend the limitation period the considerations are different. This is a relevant factor but not determinative.

 The fact that the claimant could issue again is not determinative and the court remains unlikely to grant an extension of time if no good reason is shown for a failure to serve within the four month' period.

Residual discretion

While anxious to ensure that the approach articulated in Hashtroodi and other cases was not undermined the court stated:

'But even where there is no good reason for failing to serve within the four months' period, the court will exceptionally exercise its discretion to grant an extension where CPR. 7.6(2) applies.'