Extending Time for Service of the Claim Form: Viner & Others v VW Group & Others [2018] EWHC 2006 (QB)

On 25 January 2016, the Claim Form was issued against the 1st defendant in the case of Viner & Others v VW Group & Others [2018] EWHC 2006 (QB). On 5 subsequent occasions, the defendant agreed to extensions of time for service of the claim form against the 1st defendant, pursuant to CPR 7.6(2). As part of a group litigation application, a further extension was also granted to 26 April 2018. This case concerned the application hearing for another extension for service, dated 26 April 2018. Prior to the making of this application, the claimants refused a 7-day extension with an assertion that service would be effected ‘within the service deadline’.

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Ordinarily, CPR 7.5 prescribes that the Claim Form must be served on the defendant before 12.00 midnight on the calendar day four months after the date of issue of the claim form’. Applications for extensions, made under CPR 7.6(2), are determined by application of the overriding objective. According to Hashtroodi v Hancock [2004] EWCA Civ 652, ‘good reason’ is no longer a prerequisite, but will still affect the likelihood that an extension is granted:

‘... there are reasons internal to CPR 7.6 itself which show that it was not intended to impose any threshold condition on the right to apply for an extension of time under CPR 7.6(2) ... it cannot have been intended that CPR 7.6(2) should be construed as being subject to a condition that a "good reason" must be shown for failure to serve within the specified period, or indeed subject to any implied condition'.

The claimants maintained that there was ‘good reason’ not to serve the Claim Form and that, although service was possible, the decision not to serve was ‘deliberate’. Following a failure to serve the Claim Form on the 1st defendant within the validity period, was the court able to distinguish between a ‘deliberate’ decision not to serve and an ‘incompetent’ decision, or ‘disregard for promptness’.

‘Good Reason’ Not to Serve the Claim Form?

Senior Master Fontaine found that there was no good reason not to serve the Claim Form within its period of validly, as the Claim Form could have been served within this period.

He described the claimants’ reasoning for not serving on the 1st defendant as ‘simply not credible’. He distinguished the case from authorities such as Collier v Williams [2006] EWCA Civ 20 and Hoddinott v Persimon Homes (Wessex) Ltd [2007] EWCA Civ 120, where solicitors were ‘waiting for developments’.

Here, the decision not to serve was ‘deliberate’, ‘without good reason’, ‘seriously misjudged’ and ‘incompetent’, given the ‘well-known line of authorities’ to civil practitioners. In making a conscious decision not to serve, this put at risk ‘the ability to continue the Claimants’ claims’.

‘Exercise Discretion’ to Grant the Extension?

The Senior Master stated that, given the lack of credibility demonstrated in failing to serve the Claim Form, persuading the court to exercise discretion in the claimants’ favour would be a ‘substantial hurdle’. He cited Dyson LJ, at paragraphs 35 and 36 of Hashtroodi, when he reasoned that the case was one:

‘... where there is no reason for the failure to serve other than the incompetence of the claimant’s legal representatives. Although this is not an absolute bar, it is a powerful reason for refusing to grant an extension of time.

The absence of any explanation for the failure to serve is, on the facts of this case, decisive’.

Dyson LJ maintained this approach, ruling, at paragraph 131 of Collier:

‘If, as in the present case, there is no reason to justify the failure to serve the claim form in time, it should not normally be necessary to go further’.

‘Exceptional circumstances’ must be highlighted by claimants seeking the exercise of discretion in their favour, but the reasons given by the claimant did not constitute ‘exceptional circumstances’.

In applying the overriding objective, it was appropriate to refuse the claimants’ request for an extension.

Limitation Consideration?

In Hoddinott, limitation had not expired. This was identified as a key factor for allowing extensions when they were sought by claimants. In Viner, limitation was also not in dispute. However, the Senior Master was not persuaded to apply the overriding objective and grant an extension, as the factors in favour of refusing to grant relief were ‘overwhelming’.

Full text judgment can be accessed here.