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Vinos v Marks & Spencers, Court of Appeal

12 June 2000
The issues

Power to extend time for service of a Claim Form where the period provided for service in Civil Procedure Rules 7.6(2) had expired and provisions of Civil Procedure Rules 7.6(3) did not apply

The facts

The Claimant was injured on 28th May 1996. Negotiations ensued with insurers. On 20th May 1999 the Claimant’s solicitors issued a Claim form. The Form was not served until 29th September 1999 – 9 days after the 4 month period had expired. The Claimant’s solicitors had no explanation other than oversight. They applied for an extension of time. The Judge at first instance dismissed the Claimant’s Application and set aside the Claim Form for failure to comply with Civil Procedure Rules 7.6. The Judge found that he had no discretion to extend time but that if he had discretion he would have exercised it in the Claimant’s favour. On appeal the Claimants argued that the provisions of Civil Procedure Rules 1.2 and Civil Procedure Rules 3.10 gave the Court a general discretion to extend time.

The decision

Civil Procedure Rules 7.6 (3) provided that the Court could only extend time of the Court had been unable to serve the Claim Form or if the Claimant had taken all reasonable steps to try to serve the Claim Form but had been unable to do so and in either case that the Claimant had acted promptly. In this case the Claimant had acted promptly but it was not a case where the Court had been unable to serve. It was not the case that the Claimant’s solicitors had taken all reasonable steps to serve. Accordingly, the rule not only did not empower the Court to extend time, but positively precluded the Court from doing so. The discretionary power in 31(2)(a) to extend period generally did not apply because that rule applied “except where these rules provide otherwise” and 7.6 clearly provided otherwise. Nor could the words of Civil Procedure Rules 3.10 be extended to enable the Court to do what Civil Procedure Rules 7.6 (3) specifically forbade.

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