Totty v Snowden; Hewitt v Wirral and West Cheshire Community NHS Trust: CA 31 Jul 2001

Where a party had served a claim form, but then failed to serve the particulars of claim within the appropriate time limit, the court had full discretion to allow an extension of time for service. It had been argued that the same rules applied both to the issue of the claim form, and the particulars or particulars complying with Part 16, and that no discretion existed.
Held: The claim form had been singled out for special and rigid treatment under the Rules. The problems caused by failure to serve either forms were different, and it was sensible to impose different requirements, the one strict, and the other discretionary.
Kay LJ said: ‘The effect of rule 7.4(2) is that the claimant who chooses not to serve the claim form until the period of the service has all but elapsed loses such part of that absolute right as takes the total period beyond the prescribed limit, and is left to rely on the exercise of the court’s discretion if he wishes to extend that period. That discretion would involve considering the overriding objective, which includes ensuring that the case is dealt with expeditiously. The consideration will, therefore, start from the position that the claimant will not have complied with the requirements of rule 7.4 and this will be a factor to be taken into account.
If the claimants are right in their interpretation, I consider that there is a perfectly sensible reason why a distinction could be drawn between service of the claim form and service of the particulars of claim. Until the claim form is served, the defendant may be wholly unaware of the proceedings. He may, therefore, because of his ignorance be deprived of the opportunity to take any steps to advance the case. The same would not be true if the claim form had been served but the particulars of claim were outstanding. In such circumstances it would be open to a defendant either to seek an order for immediate delivery of the particulars of claim or, if it was justified, to seek to strike out the claim. Thus a strict regime in relation to the claim form and a discretionary regime subject to the overriding objective is a perfectly sensible approach to the differing problems raised by the two types of failure to comply with the rules as to service.
For these reasons I have come to the conclusion that there is no justification for concluding, in the absence of express words to that effect, that the particulars of claim come within the provisions of rule 7.6 by implication. Thus I am satisfied that the court does have a discretion to extend time in circumstances such as those in this case.’


Gibson LJ, Chadwick LJ, Kay LJ


Times 10-Aug-2001, Gazette 04-Oct-2001, [2001] 4 All ER 577, [2001] EWCA Civ 1415




Civil Procedure Rules 7.7


England and Wales

Cited by:

CitedRobert v Momentum Services Ltd CA 11-Feb-2003
The claimant appealed against an order refusing an extension of time for service of her particulars of claim. She had made the application before the period expired.
Held: The rules made a clear distinction between applications made before . .
CitedPrice v Price (Trading As Poppyland Headware) CA 26-Jun-2003
The claimant sought damages from his wife for personal injuries. He had been late beginning the claim, and it was served without particulars. He then failed to serve the particulars within 14 days. Totty and then Sayers had clarified the procedure . .
CitedVenulum 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 . .
CitedLachaux v Independent Print Ltd and Others QBD 29-Jun-2015
Orders allowing extension of time for service of the Particulars of Claim. . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Litigation Practice

Updated: 01 June 2022; Ref: scu.159498