Hastroodi v Hancock: A tough approach towards the extension of time for service of claim forms under CPR 7.6
Hastroodi v Hancock: A tough approach towards the extension of time for service of claim forms under CPR 7.6
Mahmood Hashtroodi v Terence Hancock
[2004] EWCA Civ 652
This case decided a point of law upon which there had hitherto been no authority, namely “the principles by which the court should determine whether to extend the time for service of a claim form where the application is made within the period for serving the claim form specified by CPR 7.5 and the claim has become statute-barred within that period” (Paragraph 2).
Dyson LJ began by making it clear that the CPR is a new self-contained procedural code, and cases on RSC Ord 8 r 1 and Ord 6 r 8 are no longer good authority. There is no longer a threshold requirement that there be a ‘good reason’ for the Claimant’s failure to serve.
The guidance given by the Court of Appeal was that the power to extend should be exercised in accordance with the overriding objective. The reason for not serving the claim form will, however, be a highly material factor. Dyson LJ declined to go any further than this. As in Dyson LJ’s decision in Robert v Momentum Services Ltd [2003] EWCA Civ 299 (an application for an extension of time for service of particulars of claim before the time for service had expired), the fact that the CPR (in that case, CPR 3.1(2)(a)) was silent as to conditions suggested that conditions should not be inferred by the court, other than the duty of the court to act in accordance with the overriding objective.
However, the approach of the Court of Appeal in applying the above guidelines to the facts of this case revealed a strict lack of sympathy towards the failure of solicitors to serve claim forms. The claim was issued eight days before the expiry of the limitation period. The claimant’s solicitors had failed to properly pursue an address for service, or serve the claim form on the defendant personally, despite indicating their intention to do this in a letter to the defendant’s solicitors. The application under CPR 7.6 was made one working day before the end of the four-month period for service. A dim view was taken. Three years and four months was a “generous time-limit” (Paragraph 21). Not to act until the eve of deadlines “courts disaster” (Paragraph 34). Interestingly, the courts below were not perhaps as critical of the solicitors: the Deputy Master who dismissed the application to set aside the extension found that a negligence action was not certain to succeed, and that the claimant might end up with nothing.
The Court of Appeal’s view was that, where the only reason for non-service was the claimant’s solicitors’ “incompetence”, this was a “powerful reason” for refusing service, although not an “absolute bar” (Paragraph 35). This factor was not outweighed by the size of the claim, the lack of prejudice to the defendant (as issues had been identified early on) or costs implications. The court was concerned that “statements made by this court about the importance of the need to observe time limits would not be taken seriously” (Paragraph 36). The message was clear: fail to serve a claim form on time without good reason and you will receive little sympathy from the court.