Claims handlers are often faced with requests for extensions in time from Claimant’s Solicitors. These requests often seem innocuous enough, and sometimes they are, but please take particular care over requests for extensions to the limitation period, extensions in the time for service of proceedings, and extensions to the time for acceptance of Part 36 offers, where nasty surprises can lurk around the corner.

Deciding whether or not to grant an extension in time, and if so on what terms can be a minefield. It is easy to grant extensions without properly appreciating the consequences. If in doubt, your Bevan Brittan team or the NHSLA will be happy to advise you.

This practical guide sets out common scenarios in which extensions are requested and factors to take into account when deciding whether to grant an extension.

Limitation

Technically it is not possible for a Defendant to extend the limitation period and this commonly used term is in itself misleading. The rules relating to limitation are in a statutory form and contained within the Limitation Act 1980. In general, a Claimant (who is not suffering from a disability) has three years from the date of the incident or his date of knowledge, if later, in which issue proceedings. There are exceptions and the Court also has discretion to disapply the limitation period. What is possible, however, is for a Defendant to agree not to rely on limitation by pleading it in the Defence, if proceedings are brought within a given time. The effect is that the Claimant can serve proceedings without being at risk under the Limitation Act 1980. NHSLA authority should always be obtained first and you should consider whether it is better that the Claimant should issue now and then have more time to serve the Particulars of Claim instead.

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When considering requests for extensions to the limitation period, ask yourself the following questions:-

		Is there already a potential limitation Defence? Extensions are often requested by Claimant’s Solicitors at an early stage when it is not possible to be certain as to what the correct limitation date is, especially in ‘delay in diagnosis’ cases. You may be waiting for medical records or comments from clinicians to ascertain the precise dates that procedures took place or complications arose. It may well be the case that limitation has already expired before the request for an extension to the limitation period is received and that the Claimant is ‘trying it on’. It is important to preserve any limitation defence which may already exist if you do decide to grant an extension. If in doubt, we suggest adopting the following wording when extending the limitation period to avoid jeopardising any limitation defence which may already exist: The Defendant will retain any limitation defence that had already accrued up until [insert date extension granted]. However, the Defendant will agree not to take any point in relation to any limitation defence that might accrue in the further [insert e.g. three month] period between [insert date] and [insert date].
		What are the reasons behind the Claimant’s request and the risks –v- benefits to the Defendant of granting the extra time? If the case is likely to be a “settler” additional time may benefit the Defendant as well as the Claimant’s Solicitor since it may avoid Court and Counsel’s fees associated with issue and service of proceedings. Interest on general damages only runs from service of proceedings and a ATE premium or increment may only be triggered on commencement. It is always helpful to know how the claim is funded (see below). Conversely, if you gain the impression that the Claimant’s Solicitors are just spinning the matter out or buying time it may be better to force them to issue proceedings. Once the Court is involved it is much easier to have an influence on timetabling. Generally if Claimant’s Solicitors are only instructed just before the limitation period is due to expire and haven’t had a chance to investigate in order to know whether the case has any merit this will be a better reason to extend time.
		How is the Claimant funded? Legally aided Claimants will usually need prior authority from the LSC before being able to issue proceedings. This will trigger a review as to prospects of success and may weed out weak cases at that stage and is one reason not to extend limitation. You can ask the Claimant’s Solicitors if they already have authority. This factor may also apply to CFA funded cases as once proceedings are served a Claimant will be liable for defence costs. So a Claimant may decide not to continue with this risk if you force the issue. On the other hand, a Claimant may take out an after the event insurance (ATE) policy to back the CFA and cover his potential liability for defence costs. ATE premiums in clinical negligence cases are expensive and can cost anything between £5,000 to over £30,000. Ultimately these costs will be payable by the Defendant if the Claimant succeeds and so extending limitation may result in costs savings, particularly if an offer is likely.
		You scratch my back and I’ll scratch yours! Unless you are a Claimant’s Solicitor, you have probably been brought up to understand that you rarely get something for nothing. Has a Letter of Claim been served? Are you missing medical records or quantum information that you have been chasing for? What about asking for their condition & prognosis report or a draft Schedule of Loss in the bargain? Costs are dealt with below. This is one time when you definitely hold the whip hand and should use it to your advantage.

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Claim Forms

As a general rule it is not normally advisable to agree to requests for extensions in time to serve a Claim Form. The rules relating to service of Claim Forms are both technical and strict and if the Claimant gets it wrong the consequences can be severe for the Claimant. Think carefully before prejudicing any potential arguments which the Defendant may later have and always get NHSLA authority (if the case hasn’t already been reported to the NHSLA this request should be your trigger). Always ask the Claimant’s Solicitors what the date of issue of proceedings is. If they are already out of time do not agree to an extension. A better alternative will usually be to extend time for the Particulars of Claim instead and aphorism, ‘You don’t get something for nothing’ applies just as much here as under limitation above. Are likely to require an extension from the Claimant in the future, for example to serve a Letter of Response or a Defence. If so, request your extension at the same time and make it a condition of granting your own extension in the same order to avoid argument or additional costs later.

However, you may be more likely to think about extending the time for service of proceedings in a CFA funded case likely to be settled where the service of proceedings will trigger the payment of an additional ATE premium.

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The Particulars of Claim, condition & prognosis report or preliminary Schedule of Loss

By this stage the claim really should have been reported to the NHSLA if covered by one of its schemes and it is likely that the matter would be managed in-house or by direct instructions. However, all the same points apply. There should be a reciprocal extension of time for the Defence. We recommend making it a condition that a Schedule of Loss will be fully pleaded (so often the Claimant simply pleads £TBA) with supporting documentation.

Don’t forget Costs!

As a rule of thumb, the party needing to request more time than afforded in the Court rules (or The Limitation Act 1980) should not expect to be paid for the privilege and should often pay the costs. When sending draft consent orders for approval, Claimant’s Solicitors sometimes draft the costs provision as costs in the case (which will be in their favour if the claim succeeds) or even for Claimant’s costs in any event. Sometimes we receive a new file with a series of orders like this.

Always push for Defendant’s costs if there are no strong extenuating circumstances such as your delay in disclosing medical records pre-action or if not then no order for costs, particularly where the Claimant or his Solicitors have delayed and there is a likelihood that the Defendant may settling the case. At worst it should be costs in the case.

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Part 36 offers

The Civil Procedure Rules provide that Part 36 offers can be accepted out of time. However, extending the time for acceptance of a Part 36 offer will mean that the Claimant will not be at risk as to costs during the period of the extension and often the extension period will see an explosion in costs. Always ask the Claimant’s Solicitors why they require an extension in time to consider a Part 36 offer. Often the reason is to take Counsel’s advice, to have a conference with Counsel or revert to their experts. If fees are likely to be incurred after the original date of expiry of the Part 36 offer in 21 day’s time, we recommend that you rarely if ever agree to extend the time for acceptance of any offer unconditionally. The costs of a conference with Counsel are likely to be several thousand pounds, double that if a CFA, and these costs can be avoided if the Claimant accepts a Part 36 offer out of time.

Suggested wording that you may wish to adopt in these situations is:

The Defendant is not willing to grant an extension in time for acceptance of its Part 36 offer which you will note expires on [insert date – should normally be 21 days]. If you do wish to accept the offer out of time, we will probably not object but will wish to reconsider the position in respect of your additional costs.

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Summary

		Think carefully before extending the limitation period. If you do decide to agree to an extension, preserve any potential limitation defence that may already exist.
		Think very carefully before agreeing to requests for extensions in time to serve a Claim Form.
		Consider and request any extensions or reciprocal terms you require at the same time of the Claimant’s request when they are more likely to cooperate.
		Do not agree to potentially expensive costs orders against you when you are giving more time.
		Do not routinely agree to extend the time for acceptance of a Part 36 offer. Instead allow the offer to lapse. The Claimant can always accept out of time preserving arguments on costs.
		If in doubt, your Bevan Brittan team or the NHSLA will be happy to advise you.

Avinder Sidhu Assistant Solicitor avinder.sidhu@bevanbrittan.com