Respondents instructing county court to serve application for new tenancy — Court failing to serve — Whether failure to serve equating with being “unable” to serve for purpose of CPR 7.6(3)(a) — Appeal dismissed
The respondents were the tenants of property under leases that were due to expire in September 2001. In November 2000, the appellant landlord gave notice of termination of the tenancies under section 25 of the Landlord and Tenant Act 1954. The solicitor acting for the respondents instructed Guildford County Court to issue and serve the appropriate claim forms in respect of their application for a new tenancy. Due to an oversight, the court neglected to serve them on the appellant. In August 2001, the respondents were informed that the leases would terminate on 28 September and that the appellant would require vacant possession.
The respondents were granted an extension of time for service on the grounds that the failure to effect service resulted from an error of the court and the respondents had taken all reasonable steps to serve within the time limits imposed by CPR 7.5. The appellant appealed.
The appeal turned upon the construction of CPR 7.6(3)(a), which stated that the court could make an order to extend time for service if it had been “unable” to serve the claim form. The question was whether the term “unable” should be construed so as to include circumstances where the court had made no attempt at service, either through incompetence or oversight, or whether it was confined to a situation where some attempt had been made, albeit unsuccessfully.
Held: The appeal was dismissed.
There could be no sensible reason why the court should have the power to extend time when it had tried unsuccessfully to serve, but not when the failure to serve had resulted from an oversight. The use of the term “unable” did not necessarily connote a failure to do something. The court had the jurisdiction and the discretion to extend time for service under CPR 7.6(3)(a) where it had failed, through neglect, to serve in time.
Jonathan Gaunt QC (instructed by DFM Beckman) appeared for the appellant; Charles Phipps (instructed by Clyde & Co, of Guildford) appeared for the respondents.
Vivienne Lane, barrister
