WALTON V PICKERINGS SOLICITORS AND ANOTHER  EWHC 2073 (CH)
In Walton v Pickerings Solicitors and Another  EWHC 2073 (CH), the court refused a retrospective application under CPR 7.6(3) for an extension of time for serving a claim form, notwithstanding the fact that paragraphs (b) and (c) of CPR 7.6(3) had been satisfied.
This decision shows that a harsh approach may be taken by the courts towards parties who may have suffered from a Court Service error, but have failed to demonstrate proactivity in complying with procedural rules in the absence of a timely response from the court prior to a deadline.
The limitation period for the purposes of the claim brought by the claimant (C) was 20 July 2020. On that day, C attended the Royal Courts of Justice in person to have his claim form issued and elected to serve the claim form himself in accordance with CPR 6.4(1)(b). The impact of COVID-19 meant that the court was unable immediately to provide C with a sealed copy of the claim form, so retained a copy of the claim form, which was to be returned to C once it had been sealed. Had the claim form been issued on the same day C attended the court in person, the four-month deadline for service under CPR 7.5 would have expired on 20 November 2020.
One week before the deadline for serving claim form, C had still not received the sealed copy from the court. On the assumption that it had been lost by the court, C served the defendants (individually, 'D1' and 'D2') with an unsealed claim form and particulars of claim on 17 November 2020. C tried to contact the court but with little success as nobody answered the telephone, and the only email address he could find was for the Administrative Court Office. Just over one week later, C attended the court in person and discovered that the court had no record of his claim.
Following further discussions, the Court Service accepted that something had gone wrong and that they would issue and seal a claim form backdated to 20 July 2020. To enable this to happen, C was asked to provide a new version of the claim form in the format required for the Business and Property Courts as the template used for the original claim form had been for the Commercial Court Financial List. In the new version C also expanded on the brief details in the original claim form to refer to a specific breach as the basis of the claim.
On 7 December 2020, C received the sealed claim form (bearing the date 20 July 2020) from the court and served it on both defendants.
On 17 December 2020, C incorrectly made an application for an extension of time for service under CPR 3.10 (relating to the court's general powers to rectify matters where there has been an error in procedure). The court at both first instance and on appeal treated this instead as an application under CPR 7.6 (an application for an extension of time for serving a claim form).
C also sought to rely on CPR 6.15, which allows the court to make an order approving service by an alternative method.
On appeal, it was held that in the absence of a sealed claim form, C could not prima facie fall foul of CPR 7.6(3)(b). However, in considering whether the requirement to take 'all reasonable steps to comply with Rule 7.5' included obtaining the sealed claim form to enable it to be served, the court concluded that 'it cannot be said to be reasonable to sit back and do nothing in the hope that it might arrive in time'. The argument that C did not have the contact details of the relevant court office was rejected on the basis that this did not make it reasonable to make no attempt to contact the court at all. It would have been reasonable for C to: (a) contact the court to find out what had happened to the claim form before the date on which he did; and (b) utilise the contact details he did have, even if these were strictly speaking not for the relevant office.
C had satisfied the requirement to act 'promptly' under CPR 7.6(3)(c) by making the application to extend within ten days of receiving the sealed claim form. Nonetheless, the following led the court to refuse to exercise its discretion to grant an extension of time:
(i) C had left it until the last possible minute before the expiry of the limitation period to issue the claim form.
(ii) C chose to take responsibility for serving the claim form.
(iii) C took no action to follow-up with the court as to the whereabouts of the sealed claim before prompted to do so by D2.
(iv) The application for an extension of time could have been made before the end of the period for service.
(v) The sealed claim form differed in a material respect from the unsealed claim form which had been sent to the defendants.
(vi) If the extension was granted, the defendants would potentially be deprived of their limitation defences.
C's request for relief under CPR Rule 6.15(2) to retrospectively validate the service of the unsealed claim form, together with the particulars of claim, was refused on the basis that 'the rule…only permits changes to the method or the place of service' and 'there is no suggestion that what can be delivered is something other than the sealed claim form.'
KEY PRACTICAL POINTS
C was a litigant in person whose claim form had been lost within the court system and had faced obstacles reaching the court during unprecedented times, but his inaction led the court to extend little sympathy. Whilst a failure to take all reasonable steps to obtain a sealed claim form will not automatically bar a claim under CPR 7.6(3), acquiescence will likely influence a court's decision whether or not to exercise its discretion to grant an extension. A court is even less likely to be forgiving towards a legally represented party, guided by a practitioner experienced in navigating civil procedure.
Setting up regular reminders in relation to any deadline is vital, as is staying in touch with the court in the absence of helpful responses from the relevant court office in the event of slip-ups by the Court Service.
Applications for extensions should always be made in advance of a deadline expiring and in good time; and they should be made all the more promptly where out-of-time applications are permitted.
If the court asks a party to re-send a document to the court in a different format or even in the same format as the original, this should not be used as an opportunity to make changes to the substance of the document, even if the author realises that the original document was deficient in some way.