Glass v Surrendran - Serve or Be Damned
Glass v Surrendran - Serve or Be Damned
Case Note
GLASS v SURRENDRAN
(Court of Appeal) (Waller LJ, Dyson LJ, Neuberger LJ) 24//01/2006
Facts
On 5 September 2001 the claimant suffered neck and back injuries in a road traffic accident. Following a letter of claim in November 2001 liability was admitted the following month. On 3 September 2004, just before expiry of the limitation period, the claimant issued proceedings in the Manchester County Court; the time for service of the claim form accordingly expired on 3 January 2005.
On 21 December 2004 the claimant’s solicitors issued an application to extend time for service. This was refused on paper, but on a renewed application under CPR 3.3(5) the District Judge extended the time for service by one month. The claimant relied on the fact that liability had been admitted, accountancy evidence had been late arriving and accordingly counsel had been unable to draft the Particulars of Claim in time.
The defendant appealed to the judge (H.H. Judge Tetlow) who dismissed the appeal. He held that the worst that could be said about the claimant’s application was that it was in the wrong form (to extend time for service of the claim form, as opposed to the particulars of claim), that if he did not extend time this would result in a windfall for the defendant in a case where liability was admitted, the delay was short and the defendant was not prejudiced. He purported to apply the principles laid down in Hashtroodi v Hancock (2004).
The defendant appealed with permission of the Court of Appeal.
Finding
The defendant’s appeal was allowed. The claimant was unable to identify anything which could fairly be characterised as a reason for extending time for service of the claim form; the fact that the claimant may have had grounds for extending time for service of the particulars of claim (which, on the facts, he did not) could not justify extending time for service of the claim form.. Applying the principles laid down in Hashtroodi v Hancock there was no proper basis for exercising discretion to extend time for service of the claim form.
Comment
This was one of a group of six appeals heard together (the first listed being Collier v Williams) concerning CPR Parts 6 (service) and 7.6 (extending time for service of the claim form), which rules the Court of Appeal said had generated “an inordinate amount of jurisprudence” and required review.
In the appeals concerning extending time for service (including this one) the Court of Appeal emphasised the principle that, while in applications made within the four month period for service (CPR 7.6(2)) the strict requirements imposed by CPR 7.6(3) (applications made after expiry of the four month period) did not apply, nevertheless the first consideration for the court hearing an application under CPR 7.6(2) was “how good a reason there was for the failure to serve in time”and that if there is no reason to justify the failure to serve the claim form in time “it should normally not be necessary to go further”.
Although purportedly applying Hashtroodi the Court of Appeal has gone somewhat further in making it clear that an applicant for an extension of time for service needs to show at least some reason (not merely an excuse such as mistake or oversight) for the failure to serve in time.