The Court of Appeal gave guidance on the restrictive rules on extensions of time for service of the claim form, which in this claim was out of the jurisdiction.
Full judgment, dated 27 June 2019
Though arising out of a clinical negligence claim pursued by Leigh Day on behalf of the Claimant, this appeal really concerned the rules on extending time for service of the claim form, particularly in circumstances where time had already expired or where extension would deprive the Defendant of a limitation defence.
The court reiterated several previous authorities that provide that the regime is restrictive and sometimes harsh and that the reason for requiring extra time will always be relevant.
Haddon-Cave LJ gave the judgment of the court. He was concerned with Foskett J’s upholding of two extensions granted by Master Cook, in a clinical negligence claim against a number of Defendants in Dubai for failure to identify foetal abnormalities in the Claimant’s daughter.
The procedural history of the case is long, complex and not particularly relevant to the judgment. Suffice it to say that the relevant tortious acts occurred and were known of in mid-2012 and the claim form was issued in mid 2015. At the time of issue the Claimant applied for an extension of time to serve the claim form of a further 11 months, taking the time for service to December 2016 (the time limit for service out of the jurisdiction being 6 months, not 4). This was granted on the basis that issue of the claim had been protective, leaving much still to be done, and that the RCJ Process Section had opined that service in the UAE might take more than 12 months.
Unfortunately, the Claimant then made a further application for an extension in October 2016 asking for a further six months. The reason given for the need for more time was simply “there have been delays in arranging for service of the documents”. No witness statement was served with the application. This application was allowed without a hearing.
There were then various cross-applications, hearings and appeals, the long and the short of which being that Foskett J upheld the granting of both extensions of time.
Haddon-Cave LJ set out the judgments below and the relevant CPR sections and then, from paras 48-55, set out the applicable authorities. The first is Hashtroodi v Hancock  1 WLR 3206, in which the following principles were distilled:
- there is no requirement for there to be a “good” reason to extend service;
- the discretion should be exercised in accordance with the overriding objective;
- the court cannot deal with an application to extend time for service without knowing why the same is needed;
- the stronger the reason for the delay, the more likely the extension;
- simply having overlooked the need to serve will be a strong reason not to grant an extension;
- the Woolf reforms intended that time limits not be departed from without good reason;
- the time limits for issuing and serving are generous; and
- whether the limitation period has expired is of considerable importance.
The second authority cited was Hoddinott v Persimmon Homes (Wessex) Ltd  1 WLR 806. The key points discussed therefrom were:
- the Claimant should know that extending is perilous – even if she/he gets an order it can still be set aside; and
- the approach to applications before or after the expiry of the time limit is different – applications before time should be considered in light of the fact that the claim is not yet time-barred, whereas applications made after the deadline should not and must be dismissed unless all three conditions in CPR 7.6(3) are satisfied.
Finally, and crucially, the court considered Cecil v Bayat  EWCA Civ 135. Here the key points were:
- where limitation has expired, it has expired – it matters not whether or not by one day or one year; and
- the strength of the claim the Claimant will be deprived of may be relevant, but the stronger the claim the more powerful the Defendant’s legitimate limitation defence (which will be voided by the grant of an extension), so that an extension of time should not be granted after the expiry of limitation save in exceptional circumstances.
Haddon-Cave LJ specifically picked out Rix LJ’s approving citation from the judgment of Mummery LJ in Anderton v Clwyd County Council (No.2)  1 WLR 3174, which stated that the courts “will be entitled to adopt a strict approach, even though the consequences appear to be harsh in individual cases“.
Paras 60-89 then set out Haddon-Cave LJ’s decision. He approved the first extension but overturned the second, on two bases. First, that Foskett J had placed undue weight on the Defendant’s lack of reply to the letters written to them by the Claimant. Haddon-Cave LJ found that this should not have affected the Claimant’s preparations. Second, he found that Foskett J had paid insufficient attention to the very significant delays, the lack of satisfactory reasons for the same and the fact that they were attributable to “the failures, inaction and general lack of urgency on the part of the Claimant’s solicitors”.
This decision strongly reiterates previous dicta that applications for extending time are a risky approach and will not generally be granted without good or very good reason. Where limitation has expired the picture becomes very bleak indeed. For those acting for Claimants these applications should in no way be taken for granted.