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Thomas v Home Office, Court of Appeal, 19 October 2006

27 October 2006
The issues

Service of Claim Form – extension of time for service of Claim Form – whether extension can be agreed between the parties and what form the agreement should take.

The facts

The Claimant’s solicitors issued a Claim Form. A series of extensions of time were negotiated with the Defendant’s solicitor. These extensions of time were agreed on the telephone and noted by both sets of solicitors in attendance notes. The final extension of time was granted on the 19th May 2005. The Claim Form was served on the 23rd June 2005. According to the Defendant the final extension had lapsed on the 19th June 2005. According to the Claimant’s note the extension did not lapse until, at least, the 23rd June 2005. The Defendant applied to strike out the claim on the basis that the Claim Form had not been served in time on their calculation. Subsequently the Defendant added a second ground to the Application, namely that there had been no valid extension of time at all on the basis that it was not open to the parties validly to agree and extension of time for the service of a Claim Form and, that if there had been, that any such agreement had to be in written form. The District Judge struck out the claim. The Claimant appealed. The appeal was transferred to the Court of Appeal under CPR52.14, there being no authority on the point.

The decision

CPR 2.11 allowed the parties to vary the time by which any act had to be done by written agreement (unless the Rules or a practice direction provided otherwise).

Extending time for service of a Claim Form under CPR 7.5 came within the scope of CPR 2.11. However, any such extension and any extension of the extension had to be in writing. An oral agreement, which was then confirmed in writing by both sides was within the concept of a “written agreement”. Thus, following an oral agreement, if the two solicitors exchange letters confirming what they had agreed, the exchange of letters would amount to an agreement in writing that they have agreed an extension of time and it would be, at best, no more than a quibble to contend that an agreement in writing that the parties had agreed something orally did not constitute “a written agreement of the parties”. Here, the parties having orally agreed a variation, subsequently referred to what had been agreed in correspondence passing between them. In this case the Claimant’s solicitors confirmed an extension in one letter. If the Defendants had replied in a letter confirming this extension there would have been a written agreement. Instead, four weeks later, the Claimant’s solicitor wrote to the Defendant’s solicitor in connection with a different matter (the expert evidence) and enclosed a letter to the expert in which the solicitor stated that an extension to the 1st April had been agreed. This was insufficient to amount to a “written agreement”. An oral agreement between two solicitors, subsequently recorded in a letter sent by one solicitor to the other but not replied to by the other cannot amount to a written agreement of the parties, nor can an oral agreement between two solicitors evidence by attendance notes, unless the notes themselves are exchanged.

The Claimant had argued in addition that an estopple can arise from an oral agreement. This faced the difficulty that this would effectively render nugatory the express requirement of Rule 2.11, that any agreement to extend time be “written”. It was only right therefore that this argument had been abandoned by the Claimant and therefore it was unnecessary formally to rule on it.

The District Judge was entitled to reach the conclusion he did.

Appeal dismissed.

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