Rule 7.5(2) of the Civil Procedure Rules ("CPR") requires parties to serve their claim form within four months after the date that the proceedings are issued at court. Four recent Court of Appeal decisions have highlighted the difficulties which solicitors and their clients will face if a claim form is not served on time. Notwithstanding the court's wide powers of case management, the claim will almost certainly be struck out.

By CPR 7.6(3) the court can only extend the time for service of a claim form after the end of the four month period if:

" (a) the court has been unable to serve the claim form; or
(b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and,
(c) in either case, the claimant has acted promptly in making the application [to extend the time]".

In Vinos-v-Marks & Spencer Plc [2001] 3ALL ER, Mr Vinos had suffered an injury at work in May 1996. As negotiations between the parties had not concluded when the three-year limitation period was about to expire, a claim form was issued on 20 May 1999. Through an oversight and in breach of CPR 7.5(2), the claim form was served nine days late, on 29 September 1999.

Although sympathetic, both the district and circuit judges dismissed Mr Vinos' application to extend time for service under the court's general powers of case management (CPR 3.1) on the basis that if the requirements of CPR 7.6(3) were not met, the court had no discretion to extend time for service (since CPR 3.1 was qualified by the words "except where these Rules provide otherwise" and it was considered that CPR 7.6 did so provide).

In the Court of Appeal, counsel for Mr Vinos argued that the overriding objective to deal with cases justly under CPR 1.1, combined with the court's power to rectify errors of procedure under CPR 3.10, gave the court a discretion to correct a procedural error by extending time for service of the proceedings. The Court of Appeal, May LJ giving the leading judgment, was not impressed:

".........it is in my judgment generally in accordance with the overriding objective that you should be required to progress the proceedings speedily and within time limits. Four months is in most cases more than adequate for serving a claim form. There is nothing unjust in a system which says that, if you leave issuing proceedings to the last moment and then do not comply with this particular time requirement and do not satisfy the conditions in r.7.6(3), your claim is lost and a new claim will be statute-barred. ... Sensible negotiations are to be encouraged but protracted negotiations generally are not."

In Kaur-v-CTP Coil Limited [2000] CA Transcripts 1328, the claim form was mistakenly served four days out of time. The circuit judge extended time for service on the basis that the difficulties faced by the claimant in preparing the medical report and schedule of special damage were factors which could be taken into account when deciding whether the claimant had taken "all reasonable steps" to serve the claim form. The Court of Appeal rejected this reasoning stating that CPR 7.6(3)(b) was concerned with the taking of reasonable steps in the process of service - not the preparation of documents.

In Vinos and Kaur proceedings were served out of time. In Elmes-v- Hygrade Food Products Plc [2001] EWCA Civ 121and Nanglegan-v- Royal Free Hampstead NHS Trust [2001] 3 All ER, proceedings were served within the four month period - on time - but on the wrong party. In each case, by the time service had been effected on the correct party, the four-month period had expired.

In Elmes the proceedings were originally served on the defendant's insurers rather than on the defendant. Counsel relied upon CPR 6.8(1) which allows the court to permit service by an alternative method where there is "a good reason to authorise service by a method not permitted by [the CPR]". The Court of Appeal held that CPR 6.8 could not be applied retrospectively to remedy defective service, even if no prejudice would be caused thereby and notwithstanding that the court had a power under CPR 6.9 to dispense with service altogether.

In Nanglegan service was effected on the defendant NHS Trust rather than on the Trust's solicitors who had communicated their instructions to accept service. After close analysis of CPR 6.5, the Court of Appeal concluded, first, that it was not open to the claimant to serve the defendant personally where a solicitor had been nominated to accept service. It then rejected the claimant's second argument, that service out of time was an error of procedure which could be corrected under CPR 3.10, on the reasoning of May LJ in Vinos. The claimant's third argument, under CPR 6.8, also failed as the Court of Appeal said it was clear that the purpose of CPR 6.8 was "to provide regulation of those cases in which there has been some alternative service" and not to rectify an error of service.

It is difficult to see how the tough line taken by the Court of Appeal in striking out these claims can be justified as a proportionate response to a procedural error, particularly if the defendant would not have suffered any prejudice if the proceedings had been allowed to proceed once proper service had been effected. Perhaps it was this disparity that led Mr Justice Douglas Brown, in a decision which is difficult to reconcile with the Court of Appeal authorities, to seek out an alternative basis for leniency.

In Infantino-v- Maclean [2001] 3ALL ER, a case of clinical negligence, the claimant's solicitors took all necessary steps to comply with the relevant pre-action protocol. However, as a result of a clerical mistake the claim form was sent to the wrong DX address. By the time the mistake had been corrected service was one day late. On appeal, Douglas Brown J accepted that he was bound by Vinos, but considered that the court nevertheless had a very broad power to dispense with the requirements of service under CPR 6.9 and allowed the action to proceed despite the irregularity. He was apparently swayed by the minor nature of the solicitor's mistake in view of their generally immaculate conduct and the difficulty that the claimant would have in proving professional negligence.

Whether other judges will be as robust as Douglas Brown J in the light of the Court of Appeal's decision in Vinos remains to be seen. However, harsh as it may seem, the message from the prevailing authorities is clear: if a claimant requires an extension of time to serve proceedings after the four month period he must fall within one of the grounds specified in CPR 7.6(3), failing which the action will not be allowed to proceed.

Written by Jeremy Sharman and Catherine Milton.

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