Time is something everyone runs short of and some run out of. Two recent cases demonstrate the importance of serving documents in good time.
A claim form must be issued within the limitation period for the claim. The claim form then usually has to be served within four months of issue, although time can be extended by a court order. Where more time is required, the application must be made before the time for service has run out.
In Hashtroodi v. Hancock, a claim form was issued eight days before the end of the limitation period. The claimant’s solicitors asked the claims handlers acting for the defendant’s insurance company if solicitors were nominated to accept service but received no reply. One day before the four months for service ended and after expiry of the limitation period, the claimant managed to get a time extension from the court.
The defendant then applied to set aside the time extension. Under the Civil Procedure Rules an extension can only be granted when the claimant has taken all reasonable steps to serve the claim form and has acted promptly in applying for an extension. Where this is not the case, the court’s power to extend time has to be exercised consistently with the overriding objective – to deal with cases justly.
The fact that the claim would be time-barred if extra time for service were not granted was important but not decisive in dealing with the case justly. In the event, the court took a stricter approach: if the claimant were seeking the court’s help to overcome a genuine problem in effecting service, an extension should be granted. If, by contrast, he needed an extension because of his or his solicitor’s neglect, it should not be granted. This case fell into the latter category.
In Mersey Docks Property Holdings & Others v. Kilgour, the claimant’s solicitors faced a different problem in that they did not have a current address at which to serve proceedings on the defendant. Because they were suing Mr Kilgour as the proprietor of a business, the Civil Procedure Rules provide that service is to be effected at the defendant’s last known place of business.
They found an old address in some project documents relating to the claim. As Mr Kilgour was an architect, they tried to verify the address in the RIBA directory but could not find an entry for him. Despite this, they went ahead and attempted service at this address. Because they had waited until almost the end of the time limit before attempting to serve, it was not going to be possible to re-serve the claim form at the correct address without a time extension.
The court ruled that the claimant had to show not only that it was the last place of business known to him but also that the steps he had taken to track down Mr Kilgour’s address were reasonable. Although his solicitors searched the RIBA directory, they did not try to track him down through the RIBA itself.
The fact that they did not find an address should have prompted them to make further enquiries to find out whether Mr Kilgour was still in practice and, if so, at what address. Equally, if they had followed the pre-action protocol and written a letter before action, they would have discovered the current address or at least given themselves an opportunity to make further enquiries.
As in Hashtroodi, the claimant needed an extension of time for service because of his solicitor’s neglect. This was not a good enough reason. In any event, he had not acted promptly in applying for an extension.
The message in both cases is clear: to leave issuing and serving proceedings until the last minute is to run the risk of potential disaster. Unless there are very good grounds for failing to serve within the four-month period, an extension is unlikely to be granted.
