Once again the principles applicable to service of documents (Civil Procedure Rules Part 6) and the time for service of the claim form (Civil Procedure Rules Part 7.6) have been the subject of judicial scrutiny. In the words of Dyson LJ, “…these rules have generated an inordinate amount of jurisprudence which is to be greatly regretted.
The CPR were intended to be simple and straightforward and not susceptible to frequent satellite litigation. In this area that intention has not been fulfilled and the explicit aims of the Wolff reforms (to reduce costs, complexity and delay) have been frustrated…” This article analyses the recent developments relating to CPR Part 6 and CPR Part 7.6 arising from the conjoined appeals of Collier -v- Williams; Marshall Rankine and Another -v- Maggs; Leeson -v- Marsden and Another; and Glass -v- Surrendan [2006 EWCA Civ 20]. CPR Part 7.6 provides :-
1) The Claimant may apply for an order extending the period within which the claim form may be served.
2) The general rule is that an application to extend the time for service must be made :- (a) within the period for serving the claim form specified by rule 7.5 (normally four months); or (b) where an order has been made under this rule, within the period for service specified by that order.
3) The Claimant applies for an order to extend the time for service of the claim form after the end of the period by rule 7.5 or by an order made under this rule, the court may make such an order only if :- (a) the court has been unable to serve the claim form; or (b) the Claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and (c) in either case, the Claimant has acted promptly in making the application.
4) An application for an order extending the time for service :- (a) must be supported by evidence; and (b) may be made without notice.
While the conjoined appeals dealt with a number of specific issues relating to methods of service (CPR 6.4) it is the Court of Appeal’s approach to applications to extend time for service of the claim form within the four month period permitted for service (CPR 7.5) that has real and practical significance. Mode of application (on paper or by way or oral hearing).
Paper Applications
The application is made without notice (CPR 7.6(4)(b)) and the court can deal with the matter without a hearing if it does not consider that such would be appropriate (CPR 23.8(c)). Where a court makes an order of its own initiative without hearing the parties or giving them the opportunity to make representations, a party affected by that order may apply to have it set aside, varied or stayed (CPR 3.3(4) and (5)). The practical effect of making a paper application to extend time for service of a claim form under Part 7.6(2) is that the Applicant can apply for the order to be varied without the need of appeal. Superficially this might be attractive.
However, the Court of Appeal made the following observations :- i) On receipt of a without notice application (for example an application to extend time for service under CPR 7.6(2)) with a request for the matter to be disposed of on paper, the court should consider whether it is appropriate to dispose of the matter without a hearing; ii) In our view (the Court of Appeal) there is a danger in dealing with important applications on paper. An application for an extension of time for service of the claim form is potentially of critical importance, especially where the application is made shortly before the end of the four month period for service; iii) If the application is allowed the Defendant can always apply under CPR 23.10 for the order to be set aside in which case the Applicant may be worse off than if it had been refused in the first place; iv) It is highly desirable that on the without notice application, full consideration (with proper testing of the argument) is given to the issue of whether the relief sought should be granted; v) Equally, if an application is made late in the day and refused on paper when proper argument would have made it proper to grant, a great deal of heartache can be saved; and vi) Applications of this kind, where time limits are running out should normally be dealt with by an urgent hearing. We accept, however, that owing to time constraints pressures of business and the like it will sometimes not be possible to deal with such an application other than on paper. Even in such cases however, consideration should be given to dealing with the application by telephone.
Grounds for Application to Extend Guidance by the Court of Appeal was given in Hashtroodi -v- Hancock [2004] 1 WLR 3206. The power is to be exercised in accordance with the overriding objective (CPR 1.2(b)) the court will have to determine and evaluate the reason why the Claimant did not serve the claim form within the specified period because the overriding objective is that of an enabling the court to deal with cases “justly”. (reference : paragraph 18 per Dyson LJ) The approach to extension of time for service under Part 7.6(2) was scrutinised in Leeson -v- Marsden and United Bristol Health NHS Trust and Glass -v- Surrendan (to of the conjoined appeals). The circumstances can briefly be stated as follows :- Ms Leeson was treated by Dr Marsden (GP) and Bristol Health NHS Trust between November-December 2000. She alleged the Defendants negligently failed to diagnose a developing neurological condition until 13th December 2000. She made only a partial recovery and was left with residual quadriparesis. Letters of claim were sent by the Claimant’s solicitors on 27th October 2002. The NHS Trust did not respond for approximately one year and the general practitioner did not respond at all.
On 24th November 2003 the claim form was issued. On 9th February 2004 the solicitors requested both Defendants to agree a six month extension of time for service of proceedings. On 24th February 2004 Dr Marsden’s solicitors agreed to an extension of time for service of the Particulars of Claim, medical report and Schedule of Loss but no reference was made to the claim form. On 9th March 2004 the Claimant’s solicitors applied without notice for extension of time of service of the claim form until 20th September. The application notice requested that the court deal with the matter without a hearing. The Claimant largely relied upon the Second Defendant’s failure to respond to the letter of claim.
On 23rd March without a hearing the district judge ordered an extension of time for service of the Particulars of Claim but refused to grant an extension of time for service of the claim form. In the meantime the Claimant’s solicitor had dictated letters to the solicitors of both Defendants although due to a delay in posting them in the DX deemed service did not occur until 25th March 2004 (one day out of time).
On 8th April 2004 a different district judge extended time for service of the claim form until 15th April 2004. On 15th April 2004 the Trust issued an application to set aside the order of 8th April 2004 which was subsequently unsuccessful. The Court of Appeal’s approach is salutary. a) The Court of Appeal accepted that the district judge (on 8th April 2004) had jurisdiction to vary the original order of 23rd March 2004 (original paper application to extend time – see above). b) However, the Court of Appeal then went on to consider how the district judge had purported to exercise his discretion and commented :- i) in our judgment, the failure of the First Defendant to respond to the letter of claim was no reason at all for not serving the claim form; ii) the district judge clearly reached the wrong conclusion on the CPR 7.6(2) issue; iii) 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; and iv) they went on to emphasise what the court said in Hashtroodi’s case :- “…it is easy enough to take the view that justice requires a short extension of time to be granted even where the reason for failure to serve is the incompetence of the Claimant’s solicitor, especially if the claim 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 precise statement of the nature of the claim: see CPR rule 16.2(i)(a). These are generous time limit…”
Conclusions
a) Applications to extend the period of time for the service of claim form (in the absence of agreement from the Defendant) should be avoided; b) If an application is to be made, the court will expect, if at all possible an oral hearing together with cogent reasons as to why the claim form cannot be served within the requisite four month period; c) A decision by a district judge to extend time pursuant to 7.6(2) is susceptible to being set aside upon application by a Defendant. This can lead to dramatic consequences for those instructed by the Claimant; d) Perversely, in circumstances where the application is made without good reason, the Claimant’s advisors will be in a better position if it is refused (thereby forcing them to serve a claim form) rather than a successful application being set aside by a Defendant at a later date by which time all options have been exhausted.
Summary of Additional Procedural Matters Arising from the Conjoined Appeals Collier -v- Williams
The insurers argued unsuccessfully that because the nominated solicitors did not themselves notify the serving solicitors that they were authorised to accept service, service was invalid (consideration of CPR 6.4(2) and 6.5). Marshall and Rankine -v- Maggs Methods of service contemplated by CPR 6.5(6) were available to the Claimant in circumstances where it is known that a solicitor is acting for the Defendant but is not confirmed that he or she is authorised to accept service. Further, the definition of “last known residence” was dealt with in this appeal and in particular the requirement upon the Claimant to take reasonable steps to ascertain the Defendant’s last known address. It is apparent that this area of procedural law can present hazards to the unwary and the recent case law emphasises the dangers of ‘drinking in the last chance saloon’!
