Running out of time

Claimants have four months from the date of issue to serve the claim form (six months if serving out of the jurisdiction).

Time for service can be extended on application: if made within the time limit, under CPR 7.6(2); if made outside the time limit, under CPR 7.6(3). CPR 7.6(3) provides a threshold checklist of conditions which must be satisfied before the court can order an extension. The court may make such an order only if—(i) the court has failed to serve the claim form; or (ii) the claimant has taken all reasonable steps to comply with R 7.5 but has been unable to do so; and (iii) in either case, the claimant has acted promptly in making the application.

There is no such checklist under CPR 7.6(2).
 

The cases
 

The exercise of the discretion is dependent on the individual facts of each case. The recent first instance decisions in Imperial Cancer, FG Hawkes v Beli Shipping and Sodastream v Coates have all contributed to the development of what will constitute a sufficiently good reason for the court to order an extension of time for service of a claim form under CPR 7.6. In each case, the court set aside orders obtained without notice extending the time, following a more thorough investigation of the pertinent facts. The following propositions can be derived from these cases:

Imperial Cancer Research Fund v Ove Arup [2009] All ER (D) 282 (Jun); FG Hawkes v Beli Shipping [2009] All ER (D) 207 (Jul); and Sodastream v Coates [2009] All ER (D) 22 (Aug): while CPR 7.6(2) does not impose a threshold set of conditions, nonetheless those requirements will always be relevant to the exercise of discretion on such an application, but the fact that the conditions are not satisfied is not necessarily determinative of the outcome of a CPR 7.6(2) application; whether the claim has become statute barred since the date on which the claim form was issued is a matter of considerable importance, since a time extension would disturb the entitlement of the potential defendant to be free of the possibility of any claim; whether the claimant was reliant on further information which had not yet been forthcoming so as to determine whether or not a viable claim existed, is a relevant consideration. Conversely, simply delaying service of the claim form while awaiting a fuller particularisation of the Particulars of Claim generally will not be a sufficiently good reason for delaying service of the claim form; nor will a claimant’s desire to delay service in order to await some other development in the case; whether the nature of the claim was brought to the attention of the defendant before expiry of the time for service; where the claimant has taken all reasonable steps to serve the claim form, but been unable to do so, will generally suffice as a very good reason for failure to serve, whereas a mere oversight in failing to serve in time will not; and provided that the prospective defendant has not acted obstructively, he is under no obligation to give any positive assistance to the claimant to serve the claim form. The potential defendant may sit back and await developments.
 

The without notice nature of such orders
 

Extensions of time are often sought and obtained on a without notice basis. As Clarke J observed in the City & General (Holburn) case, this being so, such orders are always vulnerable to being set aside on a with notice application. He noted that Hoddinott had established that the fact that a claimant has not served the claim form because he has obtained an order for the extension of time without notice is not a relevant consideration in deciding, on an application with notice, whether or not to extend time. Blackburne J in Sodastream observed that an application to set aside an order extending time obtained without notice is a rehearing of the matter, not a review of the decision to extend time. The need to give full and frank disclosure on an application made without notice to extend time was highlighted in both the Sodastream and FG Hawkes v Beli Shipping cases: City & General (Holburn) Ltd v Structure Tone Limited and others [2009] EWHC 2139 (TCC) and Hoddinott v Persimmon Homes (Wessex) [2007] All ER (D) 321 (Nov).

Comment
 

Practitioners should heed the following: The weaker the reason for the failure to serve, the more likely the court will be to refuse an extension. Where an extension has been obtained without notice, this should not be relied upon as such an order can be discharged on a with notice application. This questions the value of obtaining such orders or, at the least, of obtaining them at the very last minute prior to expiry of the deadline. The lesson is: think ahead.

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