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Mason v First Leisure Corporation Plc, High Court, 30 July 2003

12 August 2003
The issues

Waiver – extension of time for service of Claim Form – Application to set Without Notice Order aside.

The facts

The Claimant suffered a very traumatic brain injury at Tamworth Leisure Centre on 24th April 1999, when skiing on a dry ski slope. He suffered a period of post-traumatic amnesia lasting some 11 weeks. Therefore, whilst the precise period of time for which the Claimant’s date of knowledge could be postponed, the fact that his date of knowledge for limitation purposes was some weeks later was not disputed. (Unfortunately, this information was not placed before the Master when making his original decision). The Claimant’s Solicitors were instructed on 22nd April 2002. On the 23rd April 2002 they issued a Claim Form. By the 7th August 2002 they obtained an expert report from a Consultant on Winter Sports and advice from Counsel. They had not yet obtained a medical report or a report from an Employment Consultant to assist in formulating a claim for loss of earnings. They had not yet contacted the witness who was with the Claimant at the time of the accident, but who was apparently hostile. They were still dealing with funding arrangements in the form of after the event insurance. On the 8th August 2002, they obtained an Order on an Application Without Notice extending time for service of the Claim Form to the 23rd December 2002. That Application was made in time and was prospective therefore and not retrospective. On the 11th March 2003, the Defendants obtained an Order setting aside the Master’s Order extending time for service. The Defendants themselves applied out of time and had sought an Order, which they obtained, granting them an extension of time for their Application. The Claimant appealed to the High Court Judge.

The decision

1. It was uncertain whether the Defendants delay in their Application was 2or 3Ω weeks. The reason for this was that it was not clear whether they were making Application under CPR 23.10 (Applications to set aside Orders made Without Notice) for which the time limit was 7 days or under CPR Part 11 (Application to Dispute the Court’s Jurisdiction) in which case the Application should have been made within 14 days after the filing of Acknowledgement. The Judge took the view that the appropriate Application should have been under Part 11.

2. In dealing with the Defendants Application for an extension of time in respect of their own Application to set aside, the Master had clearly linked what he saw as the Claimant’s delay with the issue of the Defendants delay. He regarded the Defendants delay as a technicality in view of the Claimant’s significant delay. However, he had not been told of the period of post-traumatic amnesia and had therefore approached the exercise of his discretion on a mistaken view of the facts.

3. Consequently, the Judge would hold a re-Hearing.

4. The Defendants had been unable to point to any prejudice that they had suffered as a result of the Master’s original Without Notice Order. Moreover, there was an issue as to whether the Defendants had waived its right to apply to set aside service on the basis of its conduct. Insurers had continued to deal with the claim from the 12th August onwards, the date on which the Solicitors sent to the Defendant a “Protocol” letter and advising that a Claim Form had been issued and an extension of time for service granted. When Solicitors were instructed in December, they had filed Acknowledgement of Service. They had ticked box 1 confirming their intention to defend the claim, but had not ticked box 3 “I intend to contest the jurisdiction. At the same time, a request for the Claimant’s Solicitors to extend time for service of Defence was made and agreed to. The acts and omissions of the Defendants from the 12th August to the date on which they asked for an extension of time for the Defence cumulatively amounted to a clear encouragement to the Defendant to incur expense in progressing the action in the expectation that there would be no challenge to the Master’s Order.

5. In the light of these facts, it was unjust for the Defendant to be granted an extension of time to apply to set aside the Order of the 8th August 2002.

6. Had the Defendants made a timely Application to set aside that Order, it would have been unlikely that they would have succeeded in setting aside the Master’s Order. Although the course taken by the Claimant’s Solicitors was the wrong one, they had honestly believed that what they were doing was reasonable and appropriate and were acting conscientiously. It was a substantial claim. There was no prejudice to the Defendant.

7. The Claimants had applied for an extension of time for service of the Claim Form. This was in fact the wrong course. See Jones v Wrekin, in which Lord Woolf MR made it clear that the object of serving proceedings was so that the Defendant could take appropriate action to contest them and in which Robert Walker LJ pointed out that extensions of this type were likely to lull Solicitors into a false sense of security and that such extension should be granted only if there was good reason. The proper course would have been to serve the Claim Form and seek an extension of time for service of medical evidence and Particulars of Claim if necessary.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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