A timely reminder for lawyers to reacquaint themselves with the White Book?

5 June 2013

Given the recent and extensive amendments to the CPR, it may be useful for lawyers to remind themselves of the deadlines that apply when issuing and serving proceedings.

A Claimant has four months in which to serve an issued Claim Form. However, recently there seems to have been some confusion with regard to the service of the Particulars of Claim. Whilst lawyers should always be alive to the limitation of proceedings, a recent decision from the Technology and Construction Court highlights how important it is to be wary when leaving the service of a claim until the last minute.

The Civil Procedure Rules to be familiar with are contained within CPR 7 and it is easy to overlook the ‘one liner’ which may prove fatal to a claim. Whilst, pursuant to CPR 7.4(1) (a) and (b), the Particulars of Claim must be contained or served with the Claim Form or 14 days after the Claim Form, this must be read in conjunction with CPR 7.4(2) and CPR 7.5, which state that Particulars of Claim must be served on the Defendant no later than the latest time for serving a Claim Form, which is four months after the date of issue of the claim. This does not mean that Particulars of Claim can be served four months and two weeks outside of the limitation period.

Given the stricter approach that the Courts are now taking towards those who fail to comply with the CPR, it is important to review the decision set out in the recent judgment of Mr Justice Edward-Stuarts, in the case of Venulum Property Investments v Space Architecture Limited and others [2013] EWHC 1242 TCC.

The facts of the application are quite straightforward. The Claim Form was served on the last day for service; however the Claimant’s solicitors believed, wrongly, that they had a further 14 days in which to serve the Particulars of Claim. The Claimant made an application for permission to extend time for service of the Particulars of Claim on the 9th and 10th Defendant (“the Miller defendants”), who were the only ones who objected to the late service. If the application was unsuccessful that would be the end of the claim against the Miller defendants due to the statute of limitation.

The judge agreed with counsel for the Miller Defendants; that solicitors who leave service of the Claim Form until the dying weeks of the limitation period have to be wary.

Following the amendments to CPR 3.9 after 1 April 2013, the nine factors that the Court previously had to consider in deciding whether to exercise its discretionary power to extend time for serving Particulars of Claim, have been removed.  The Court now has to consider:

“…all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

a) for litigation to be conducted efficiently and at proportionate cost; and

b) to enforce compliance with rules, practice directions and orders.”

The judge held that the absence of a good reason for failing to comply with the relevant time limit was an important factor, marking a change to the overriding objective, and required the Court to take a robust approach when exercising its discretion.

The judge stated that it was inappropriate for him to do anything more on an application such as this, than express a provisional view on the material available about the merits of the claim against the Miller Defendants. However:

‘…[he made] the general observation that where a claimant for no good reason leaves it until the last minute to issue proceedings he is under a high obligation to ensure that the claim that is finally presented is clear, coherent and properly particularised.’

The Claimant’s application failed due to the following reasons:

  • The Claimants had known in April 2007 that they had suffered a potential loss but did not instruct solicitors until September 2012. No explanation had been offered for this delay.
  • Based on the material before him, the claim against the Miller Defendants was not a strong one.
  • A claim of bad faith against the Miller Defendants had been put forward in particularly vague terms.

However, the judge did consider factors which would have been applied ‘pre-Jackson’ (due to the date which the application was issued) and concluded that whilst in this instance the application failed, the factors in the case were finely balanced, and if all other things were equal, it would be hard to see how it would be just or proportionate not to allow the Claimant a few more days for service. 

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