The claimant had issued proceedings in time, but then the limitation period expired before it was served, and in the meantime the limitation period had expired. The defendant appealed against an automatic extension of time for service granted to the claimant.
Held: The Rules should generally be interpreted without reference to case law under the old rules. The court had an unfettered discretion to extend time for service where there was good reason. A more calibrated approach was not necessary. If there was a good reason for the delay, and extension would normally be granted, but the court might well refuse one where the reason was weaker. This was a matter of principle, and the court declined further to expand upon it. In this case the reason was not good, and the extension should not have been granted.
Dyson LJ said: ‘It has often been said that a solicitor who leaves the issue of a claim form almost until the expiry of the limitation period, and then leaves service of the claim form until the expiry of the period of service is imminent courts disaster.’ and ‘It follows that this is a case where there is no reason for the failure to serve other than the incompetence of the claimant’s legal representatives. Although this is not an absolute bar, it is a powerful reason for refusing to grant an extension of time.’
Judges:
Lord Justice Thorpe Mr Justice Bennett Lord Justice Dyson
Citations:
[2004] EWCA Civ 652, Times 04-Jun-2004, [2004] 1 WLR 3206
Links:
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Uphill v BRB (Residuary) Ltd CA 3-Feb-2005
The court considered an application for leave for a second appeal.
Held: Pursuant to the Practice Direction, the court certified that though this was an application for leave, it could be cited: ‘the reference in CPR 52.13(2)(a) to ‘an . .
Cited – Collier v Williams and others CA 25-Jan-2006
Various parties appealed refusal and grant of extensions of time for service of claim forms.
Held: The court gave detailed guidance. The three central issues were the proper construction of the rule, the question of whether the court could . .
Cited – Nelson and Another v Clearsprings (Management) Ltd CA 22-Sep-2006
The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the . .
Cited – Aktas v Adepta CA 22-Oct-2010
The court was asked whether, when a claim was issued towards the very end of a limitation period, but was then not served, and the claim was struck out, CPR Part 7.5(1) gave a further four months in which it could be resurrected at the discretion of . .
Cited – Venulum Property Investments Ltd v Space Architecture Ltd and Others TCC 22-May-2013
The claimant sought an extension of time to serve the Particulars of Claim. The solicitors said that they had misread the relevant Rules.
Held: The solicitors had acted on the basis of the former practice, but the rules had been substantially . .
Cited – Mitchell MP v News Group Newspapers Ltd CA 27-Nov-2013
(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very . .
Cited – Cardiff County Council v Lee (Flowers) CA 19-Oct-2016
The court was asked: ‘can the court proceed to validate a warrant of possession where a landlord who seeks to enforce his right to possession because of an alleged breach of the terms of a suspended possession order has not complied with CPR 83.2? ‘ . .
Lists of cited by and citing cases may be incomplete.
Civil Procedure Rules, Limitation
Updated: 11 June 2022; Ref: scu.197949