Court applications relating to service of proceedings are a regular feature of the Court diary and the last few months have proved to be no exception. In this article I have highlighted three recent cases; one addressing a failure to serve the Particulars of Claim and the other two consider the consequences of failure to serve the Claim Form. The cases raise points to consider when a Claim Form lands on your desk …..or not!
Service of the Particulars of Claim – a quick reminder of the rules in CPR 7.4
(1) Particulars of claim must –
(a) be contained in or served with the claim form; or
(b) be served on the defendant by the claimant within 14 days after service of the claim form.
(2) Particulars of claim must be served on the defendant no later than the latest time for serving a claim form (see the reminder on the rules for service of the Claim Form below).
At the end of January 2011 judgment was given in the case of Katsouris (i); a complicated case about the negligent supply of tainted tahini. The Claimant had failed to serve the Particulars of Claim within 14 days of service of the Claim Form and a year later made an application for more time. The Defendant’s primary case was that the Claim had lapsed but the Court was clear that as there had been no Court order to stay or to strike out the action then it continued to exist. However, the Court applied its own discretion and dismissed the Claimant’s application for more time for service as the Claimant had persistently failed to comply with the rules, not acted in accordance with the spirit of the CPR and failed to act in a straightforward manner. The claim was accordingly struck out.
So, if a Claim Form is languishing at the back of the filing cabinet and Particulars of Claim have not been served you cannot assume that the matter has gone away even if it is some time since you have heard from the Claimant. Unless the action is discontinued by the Claimant or brought to a resolution through the Courts it will continue to exist. Should the Claimant seek to serve the Particulars of Claim out of time this should be resisted, particularly if limitation has expired. The CPR also allows the Defendant to take proactive action to strike out a claim where there has been a failure by the Claimant to adhere to the rules, or a Court order, so it is important to keep a close eye on the time limit for service of the Particulars of Claim.
Service of the Claim Form – a quick reminder of the rules in CPR (5) and (6)
Rule 7(5) states that the Claim Form should be served within four months of issue (or six months if service is out of the jurisdiction).
Rule 7(6) states that the Claimant may apply for an extension of time to serve the Claim Form before or after the four (or six) month period has expired. If the time for service has expired the Claimant will succeed in its application only if;
(a) the court has failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
(c) in either case, the Claimant has acted promptly in making the application.
In February 2011 the Court of Appeal gave judgment in the case of Bayat (ii), which involved a dispute about shares in a telecommunications project in Afghanistan. The Claimants applied for more time to serve the Claim Form because they lacked funds and had not been able to secure a CFA and ATE insurance. In the first instance the Judge commented that lack of funding is not generally a good reason for an extension of time but in this case, which was a sizeable claim with potentially very high costs, he was satisfied that good reasons had been made out and the Claimants were given more time. The Defendants were unsuccessful in their application to set aside that Order and so they appealed.
The Court of Appeal held that the Claimants should have served the Claim Form within the time limits prescribed in the CPR and, if they were not in a financial position to proceed immediately with the claim, they should have issued an application for a stay, or an extension of time for the procedural steps to be taken. The Court of appeal set aside the original order allowing more time for service of the Claim Form.
The Court of Appeal distinguished the Bayat case with the case of Steele (iii) where the Claimant was allowed more time to serve her Claim Form. Mrs Steele, unlike the Bayat Claimants, did not know if she had a good claim against the Defendant because she had not obtained an expert report as a result of the Defendant’s delay in supplying medical records.
In an application for more time to serve the Claim Form, particularly where the Claimant is outside the limitation period, good reasons will be necessary for him to succeed but beware – he may succeed if the Defendant has contributed to the delay.
Again, the rules, at CPR 7.7, allow the Defendant to be proactive and to apply for service of the Claim Form if you are aware that it has been issued but not served.
Mrs Steele would probably also have benefited from the Court’s discretion under section 33 of the Limitation Act 1980 as I have considered in the next of the conjoined appeals of Aktas & Dixie (iv), which were both personal injury matters. The Court of Appeal undertook a comprehensive review of the case law in determining whether Claim Forms issued just before the end of a limitation period, and which had been struck out following a failure to serve in time, could be resurrected in a second action.
The Defendants submitted that a failure to serve in time in the first action is so serious a misuse of procedure that it constituted an abuse of process and required the striking out of the second action as a further abuse of process, irrespective of the discretion in section 33 of the Limitation Act.
The Court of Appeal had to address the tension between the strict application of the CPR and Parliament’s statutory concession for personal injury Claimants under the provisions of Section 33. The Court of Appeal said:
It is important that the courts strictly regulate the period granted for service. If it were otherwise the statutory limitation period could be made “elastic at the whim or sloppiness of the Claimant or his solicitors”. There is also public interest in the rules and the Courts will require Claimants to adhere strictly to time limits or else timeously provide a good reason for some dispensation.
So far so good for the Defendant, but then:
A mere negligent failure to serve the Claim Form did not constitute an abuse of process; and
The facts of this case did not prevent the Court from applying its discretion under Section 33 which is invoked whenever a personal claim is commenced outside the three year limit or is brought outside that limit in a second action after the first action has failed as a result of the Claim Form being too late or indeed never being served.
The Court of Appeal therefore allowed the Claimants’ appeals.
In the deciding whether or not to invoke section 33 discretion much will depend on whether or not the Defendant is prejudiced by its application. In the Dixie case the Claimant had suffered an accident at work and so the Defendant, his employer, was immediately aware of the incident which it investigated whilst the Claimant was off work. The Court found that apart from the loss of a limitation defence there was no real prejudice to the Defendant and indeed it could benefit from a “windfall” just because the Claimant had failed to observe the necessary time limit for service.
Unlike the situation of failure to serve Particulars of Claim, where limitation has expired and following a failure in proper service of the Claim Form, careful consideration is required before applying to set aside the Claim Form because of the section 33 discretion. Despite the assertion of the Court that service rules should be strictly adhered to, a Claimant in a personal injury action seems to be able to get around his procedural defect with little difficulty.
(i) Katsouris Brothers LTD v Haitoglu Bros SA:Katsouris Fresh Foods LTD & Bakkavor Foods LTD v Katsouris Brothers LTR & Haitogolu Brothers SA  EWHC 111 (QB)
(ii) (1) Ehsanollah Bayat (2) Telephone Systems International Inc (3) Afghan Wireless Communications Co (4) Mark Warner v (1) Michael Cecil (2) Stuart Bentham (3) Alexander Grinling (4) Joakim Lehmkuhl  EWCA Civ 135
(iii) Steel v Mooney  EWCA Civ 96  2 Al ER 256
(iv) Aktas c Adepta  EWCA Civ 1170