Lincolnshire County Council v Mouchel Business Services Ltd and another
Civil procedure – Service of proceedings – Extension of time – Claimant applying without notice for extension of time for service of claim form and particulars of claim – Combined effect of two orders granting claimant extension of time by five months – First defendant applying to set aside second order granting further extension – Whether extension being validly granted – Application granted
The first defendant was an architect to which the claimant local authority allegedly outsourced architectural services in connection with the extension of a science block in a grammar school which was under the claimant’s control as local education authority. The first defendant carried out the design of the building and the actual works were carried out by the second defendant building contractor. After completion of the works, it became apparent that the building had rising damp. Correspondence commenced between the parties and, in 2011, the school had asked the defendants to accept responsibility for the defects. A report by expert consulting engineers instructed on behalf of the claimant reported that the first defendant’s design was fundamentally flawed.
Civil procedure – Service of proceedings – Extension of time – Claimant applying without notice for extension of time for service of claim form and particulars of claim – Combined effect of two orders granting claimant extension of time by five months – First defendant applying to set aside second order granting further extension – Whether extension being validly granted – Application granted The first defendant was an architect to which the claimant local authority allegedly outsourced architectural services in connection with the extension of a science block in a grammar school which was under the claimant’s control as local education authority. The first defendant carried out the design of the building and the actual works were carried out by the second defendant building contractor. After completion of the works, it became apparent that the building had rising damp. Correspondence commenced between the parties and, in 2011, the school had asked the defendants to accept responsibility for the defects. A report by expert consulting engineers instructed on behalf of the claimant reported that the first defendant’s design was fundamentally flawed. The claimant issued proceedings against the defendants in July 2013. Bearing in mind the danger of limitation problems, the claimant also applied, without notifying the defendants, purportedly under section 2.3.2 of the Technology and Construction Court (TCC) Guide, for an extension of time for service to 18 January 2014. The court granted the extension to enable the parties to comply with the Pre-action Protocol for Construction and Engineering Disputes. In order to comply with the protocol, the letter of claim had to be sent by about 16 November 2013 but it was not issued until 3 December 2013, four-and-a half months into the period allowed by the court order. Therefore, a different judge granted a further extension to 18 April 2014. The combined effect of the orders was to extend time for service of the claim form and particulars of claim by five months. The first defendant applied to set aside the further order and strike out the claim because it had not been validly served in time. Held: The application was granted.(1) Under the Civil Procedure Rules (CPR), a claim form had to be served before 12.00 midnight on the calendar day four months after the date of issue. Particulars of claim had to be served with the claim form or within 14 days after service of it. The claimant might apply for an extension of time for serving the claim form without notice, generally before the expiry of the four month period set by CPR 7.5(1): CPR 7.6 (1), (2) and (4). It had the effect of extending the latest time for service of the particulars of claim and was an exception to the general rule that a copy of the application notice had to be served on each respondent. The court expected the parties to have complied with any relevant pre-action protocol and took any failure to do so into account when exercising its general powers of management, including its power to grant relief from sanctions: CPR 3.1(4) and (5) and the Pre-Action Conduct Practice Direction at 4.1 and 4.2. (2) The Pre-action Protocol applied in the present case. While an application for an extension of time for serving a claim form might be made without notice pursuant to CPR 7.6, a party issuing proceedings to which the protocol applied without complying with the protocol because his claim might become time barred was obliged by paragraph 6 of the protocol to apply to the court on notice for directions as to the timetable and form of procedure to be adopted. The TCC Guide reflected the flexible framework within which litigation in the TCC was habitually conducted. It was not a substitute for the CPR and parties and their advisors were expected to familiarise themselves with the CPR and understand the importance of the overriding objective of the CPR. Paragraph 2.3.2 of the guide mirrored paragraph 6 of the Pre-action Protocol, including the mandatory requirement to apply for directions as to the timetable and form of procedure to be used. It did not state that such an application had to be made on notice, but that did not detract from the requirement in the protocol that it should be: Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806, Fred Perry v Brands Plaza Trading [2012] EWCA Civ 224 and Venulum Property Investments v Space Architecture [2013] EWHC 1242 (TCC); [2013] PLSCS 117 considered. (3) Such an application enabled the court to review the position in the light of any relevant submissions made by each affected party and promoted the overriding objective of the CPR by providing the court with full information on which to make its case management decision and ensured a level playing field from the outset. Moreover, if the order was made without notice, there was always the risk that one or more affected parties would apply to set the order aside as had happened in the present case. The requirement that the initial order for directions be made on notice thus removed the risk of further costly and time-consuming satellite litigation. Although each case depended on its precise facts, neither the fact that the provisions of the pre-action protocol had not yet been complied with, nor the prospect that serving proceedings might lead to an increase in costs because of that non-compliance, was a good reason for failing to serve the claim form: Leeson v Marsden [2006] EWCA Civ 20; [2006] PLSCS 22 and Charles Church Developments Ltd v Stent Foundations Ltd [2007] EWHC 855 (TCC) considered. (4) The order made in the present case would be set aside and the claim against the first defendant struck out as the claim form had not been validly served in time. Parties who issued late were obliged to act promptly and effectively and, in the absence of sound reasons, which would seldom if ever include a continuing failure to comply with pre-action protocol requirements, the proceedings should be served within four months or in accordance with any direction from the court. A claimant who did not do so and, where the protocol applied, who did not obtain directions on notice did so at extreme peril. James Leabeater (instructed by Lincolnshire Legal Services) appeared for the claimants; Lynne McCafferty (instructed by Beale and Company LLP) appeared for the first defendant; The second defendant did not appear and was not represented. Eileen O’Grady, barrister
