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Hashtroodi v Hancock, Court of Appeal, 25 May 2004

2 June 2004
The issues

Extension Of Time For Service Of Claim – Whether Extension Should Be Allowed – Rule 7.5 CPR; Rule 7.6 CPR; Rule 3.4

The facts

The Claimant was injured in a road traffic accident on 21st January 2000 when his motorcycle collided with the Defendant’s taxi. He suffered severe damage to his cervical spine resulting in tetraplegia. He required 24-hour care and would never be able to work again.

He instructed solicitors who wrote a letter before action to the Defendant on 14th June 2000 and sent a copy to the Defendant’s insurers. On 22nd August 2000 the insurers claims handlers wrote to the Claimant’s solicitors setting out their reasons for asserting that the Claimant had been contributorily negligent to a high degree.

Further correspondence ensued between July and November 2000. Thereafter there were no further letters until 25th April 2003 when the Claims handlers were notified that a claim had been issued and enquiring as to whether the claims handlers wished to nominate solicitors to accept service. The Claim Form had been issued on 13th January 2003. The letter dated 25th April was sent to the registered office of the claims handlers and not its place of business. The company’s auditors forwarded it to the claims handlers where it was received on 1st May. The letter did not bear a reference nor did it enclose a copy of an earlier letter to the Claims handlers which it purported to do. It was therefore sent back to the solicitors who received it on 6th May.

On 8th May the solicitors allegedly made 4 telephone calls to the claims handlers but failed to receive written confirmation that solicitors would be notified. On 9th May (1 clear working day before expiry of the validity of the claim form) the Claimant made an Application without notice for a 3-week extension of time for the service of the Claim Form until 3rd June. The Master allowed the Application and extended time until 3rd June. On 12th May the solicitors wrote to the Claims Handlers again giving the correct reference and asking for solicitors to be nominated. On 14th May the claims handlers nominated solicitors and on 19th May the solicitors informed the claims handlers that they had obtained an Order extending time for service. On 20th May the Order of the Master was drawn up and sealed. On 23rd May the Claim Form was purportedly served on the solicitors by DX. The Master subsequently found that the probability was that the letter and Claim Form sent to the DX got there but was lost at the DX. On 28th May the solicitor sent by fax to the claims handlers and by DX to the claims handler’s solicitors the Particulars of Claim and Schedule.

On 2nd June the Defendant issued an Application for an Order that the Order of the Master be set aside on the grounds that the Claimant had no grounds pursuant to CPR 7.6 for extending the time for service of the Claim Form. On 9th June a second Application was issued by the Defendant asking for an Order that the claim be struck out pursuant to CPR 3.4 on the grounds that neither the Claim Form nor the Response Pack had been served by 3rd June in accordance of the Order of the Master.

The decision

The appeal raised the issue concerning the principals by which the Court should determine whether to extend the time for service of a Claim Form where the Application was made within the period serving the Claim Form specified by CPR 7.5 and the claim had become statute barred within that period.

The CPR was a new procedural code and therefore submissions that had been made as to the case law under Order 6 Rule 8 of the old Rules of the Supreme Court was not relevant. The power under CPR Part 6 had to be exercised in accordance with the overriding objective. Given the importance of the issue the Court had considered whether it should try to give guidance as to how the discretion should be exercised beyond merely saying that it should be exercised in accordance with the overriding objective. Other than to say that the reason for the failure to serve within the specified period would always be a highly material factor the Court did not think it would be right to go further than this.

It would be wrong for the discretion to be circumscribed.

However, if there was a very good reason for the failure to serve the Claim Form within the specified period, then an extension of time would usually be granted. Thus where the Court had been unable to serve the Claim Form or the Claimant had taken all reasonable steps to serve the Claim Form but had been unable to do so, the Court would have no difficulty in deciding that there was a very good reason for the failure to serve. The weaker the reason however the more likely the Court would be to refuse to grant the extension. Thus if the reason why the Claimant had not served the Claim Form within the specified period was that he or his legal representative simply overlooked the matter, that would be a strong reason for the Court for refusing to grant an extension of time for service.

In this there had been no explanation for the failure to serve and that was decisive. The errors on the part of the solicitors were egregious. If an extension of time were granted in this case there would be a real risk that statements made by the Court about the importance of the need to observe time limits would not be taken seriously.

Order set aside.

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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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