Professional Negligence Briefing: Late Service Of Claim Forms - A Risky Practice

The service of claim forms is, time and again, a cause of professional embarrassment as the courts insist on timely and correct service on defendants. For a number of years, the courts have been making very clear to lawyers that the test for obtaining an extension of time for service of a claim form after time has expired is a very onerous one. If you need more time, the message was, apply in advance, not after time expires. Two recent cases have now emphasised that there also are serious risks involved in obtaining extensions before time for service expires.

In the first case, Sodastream (in liquidation) v Coates & ors [2009] EWHC 1936, the applicant, the fifth (and seemingly overlooked) defendant, applied to set aside five orders each extending time for service of the claim form. The claim form had been served on him in Israel 15 months after it was issued, the claimant having made five applications, all without notice and dealt with on paper, to extend time for service out of the jurisdiction. The limitation period on the claim had by then expired.

The judge, Mr Justice Blackburne had to consider whether the claimant had had 'good reasons' for obtaining each of the extensions up until the time when service was effected. Some extensions he held to be valid, specifically those to cover the time required by the Foreign Process Section of the court to attempt service in Israel. This attempt at service failed because the address given by the claimant for the fifth defendant was incorrect. However, the claimant was unable to show good reason for all the extensions, in particular the fourth and fifth, which appeared to cover time during which the claimant had made very little effort to find the correct address and to effect service once the official channel had failed. The judge also criticised the earliest periods of delay saying it had not been reasonable to await finalisation of the particulars of the claim before serving the claim form.

The judge was also critical of the approach taken by the claimant's solicitor who appeared to treat the applications as mere formalities; ignoring recommendations from the Court of Appeal that applications to extend where limitation was close to expiring should be properly argued not dealt with on paper; failing to mention in supporting evidence the numerous previous applications; and simply re-using the same witness statement time and again – each time labelling it as the first witness statement.

Blackburne...