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...