FINAL VERSION IN THE COUNTY COURT SITTING AT BIRMINGHAM Appeal REF.BM5/007/A Before His Honour Judge Lopez sitting on the 2 nd October 2015 Claim No.A04YM127 BETWEEN: RAYMOND PRICE Appellant / Claimant and EGBERT H TAYLOR & COMPANY LIMITED 1 Respondent / Defendant Mr Jonathan de Rohan of counsel instructed by Prescott Solicitors on behalf of the Appellant / Claimant. Mr Matthew White of counsel instructed by DAC Beachcroft Solicitors on behalf of the Respondent / Defendant. The Introduction JUDGMENT 1. This is an appeal by Mr Raymond Price, the Appellant, against the order of District Judge Talog-Davies on the 9 th April 2015 (i) dismissing the Appellant s application for an extension of time for serving the Claim Form, the Particulars of Claim, the Schedule of Special Damages and supporting medical evidence in an action for personal injury against his former employer Egbert H. Taylor & Company Limited, the Respondent; and (ii) striking out the Appellant s claim. The Summary of the Essential Background Fact 2. This is not intended to be a comprehensive chronology of events but merely a summary of the essential history of the case or factual matrix against which the decisions this Court has to make can be set. 3. In 2011 Mr Raymond Price, Appellant - and the Claimant in the main action, was employed by Egbert H. Taylor & Company Limited, the Respondent to this application and the Defendant in the main cause.
4. On or about the 4 th May 2011 the Appellant suffered a cerebrovascular accident or stroke whilst at work. It is his case that the first aider who dealt with him at the scene recommended that an ambulance be called to take him to hospital but the Respondent s manager decided that he should, instead, be driven to a local hospital at Kidderminster by a colleague. It is understood that the Respondent s case is that - realising the Appellant had suffered a stroke, the manager merely wished to get him to hospital as soon as possible and thought that transporting him directly by car would save valuable time. It is the Appellant s case that that decision was negligent and resulted in a worse outcome for him than would otherwise had been the case. 5. There is no medical evidence before the Court that either supports or contradicts the basis of the Appellant s claim against his employer. 6. The Appellant instructed solicitors Prescott Solicitors of Kidderminster who sent a letter before action dated the 30 th December 2012. By a letter, dated the 11 th March 2013 the Respondent s responded seeking further information and disclosure of the Appellant s medical records. 7. On the 26 th April 2014 a Claim Form was issued by Appellant s solicitors. That was, of course, some seven days before the expiration of the primary limitation period of three years provided by the Limitation Act 1980. The same was not served on the Respondent or its solicitors. 8. On the 20 th August 2014 the Appellant s solicitors applied to the Court to extend the time for service of the Claim Form, Particulars of Claim, the Schedule of Loss and medical evidence supporting the claim the First Application for an Extension. In support of the application Mr Prescott the Principal of Prescott Solicitors and the solicitor with conduct of the case, made a statement, dated the 20 th August 2014 which indicated that medical evidence was vital in order to progress the case and a neurologist was to be instructed who would report within 5 weeks of receipt of instruction and the medical records. On the 28 th August 2014 Deputy District Judge Jones extended the time for service of the Claim Form to 4.00 p.m. on the 25 th November 2014 so as to facilitate the instruction of a neurologist to report on issue of causation. 9. On the 17 th November 2014 the Appellant s solicitors made another application to extend the time for service of the document the Second Application. A statement, dated the 17 th November 2014, by Mr Prescott in support of the application indicated that steps are now being taken to instruct a consultant. That was some 3 ½ years after the index incident. The letter that accompanied the application is marked with two date stamps from the Court. The first, dated the 19 th November 2014, by the County Court Bulk Centre and the second, dated the 26 th November 2014, by the County Court Money Claims Centre. Therefore, the application was received at a Court centre before the expiration of the extension period. That application was dealt with by Deputy District Judge Pickup on 2
the 10 th December 2014 who extended the time for service of the documents to 4.00 p.m. on the 10 th March 2015 so as to allow the Appellant s solicitor further time to instruct a neurologist. Although the Deputy District Judge had intended to extend the time for service of the Claim Form as well as the other documents, as the file notes made clear, the order as drawn did not include the same. The parties now agree that the Claim Form should have been included in the order. 10. The Order of the 10 th December 2014 was drawn on the 12 th December 2104 and received by the Respondent on the 17 th December 2014. On the 22 nd December 2014 the Respondent s solicitors applied to set aside the order of the 10 th December 2014 extending the time for service. On the 16 th January 2015 the Court made an order transferring the case to Birmingham. That resulted from the Respondent s application to set aside the order. On the 19 th January 2015 the Court sent a General Form of Transfer informing the parties that the case has been transferred to Birmingham. The Respondent accepts that was received but, today, the solicitor acting for the Appellant contend that a notice of transfer of proceedings, of the same date, was not received. 11. On the 23 rd January 2015 Deputy District Judge Callow at the County Court at Birmingham ordered that the Respondent s application to set aside the order of the 12 th December 2014 be listed on notice and heard on the 9 th April 2015. The Respondent s solicitors accept that they received a notice from the County Court at Birmingham, dated the 14 th February 2015 listing the application to set aside the order of the 22 nd December 2014 on the 9 th April 2015 on notice by which, of course, it meant on notice to the Appellant. The Respondent s solicitors assert that they sent a copy of the application to set aside, the Court order and the notice to the Appellant s solicitor with an accompanying letter, dated the 23 rd February 2015, which would have placed him on notice if he was not already aware, that the matter had been transferred to Birmingham. 12. On the 5 th March 2015 and, therefore, before the expiry of the second extension of time, Prescott solicitors sent a further application the Third Application, for an extension of time for service of the Claim Form, the Particulars of Claim, the Schedule of Loss and medical evidence in support to Northampton Moneys Claims Centre. Unfortunately, the Appellant s solicitors omitted to enclose a cheque for the appropriate fee in respect of the application, namely 50.00. The letter from Prescott solicitors to the Court, dated the 5 th March 2015, which accompanied the application was received by Northampton County Court Bulk Centre on the 6 th March 2015 as it was date stamped to that effect. It was also marked No fee enclosed. A statement by Mr Prescott, dated the 5 th March 2015, in support of the application indicated that the Appellant still did not have medical evidence it sought. 13. The application was received by the County Court at Northampton on the 6 th March 2015, as the accompanying letter was date stamped by the Court with that date. As the matter had been transferred to Birmingham the Court at Northampton sent the application to Birmingham. It is, however, not clear when the application was sent. However, the Birmingham Civil Justice Centre returned the application to the Appellant s solicitors with 3
a covering letter, dated the 18 th March 2015, indicating that as from the 22 nd April 2014 the fee for processing an ex-parte - without hearing, application was 50.00 and that fee had not been included with the application. The Appellant s solicitor accepts that he omitted to include a cheque to cover the fee. 14. On the 19 th March 2015 and, therefore, after the extension period had already expired, the Appellant s solicitor re-submitted the application, this time with the appropriate fee and to Birmingham Civil Justice Centre. The application and fee was received by the Court on the 20 th March 2015. 15. On the 23 rd March 2015 Deputy District Judge Toussant sitting at in the County Court at Birmingham listed the Appellant s application for extension of the 5 th March 2015 to be heard on notice on the 9 th April 2015 together with the Respondent s application to set aside the order of the 12 nd December 2015. 16. On the 9 th April 2015 (a) the Respondent s application to set aside the order of the 12 th December 2014; and (b) the Appellant s application to extend the time for serving the Claim Form, Particulars of Claim, Schedule of Loss and medical evidence came before Deputy District Judge Talog-Davies. At that hearing the Appellant was represented by Mr Samuel of counsel and the Respondent by Mr White of counsel - who appears again today in this appeal. 17. The Learned Deputy District Judge dealt with the Appellant s application first. The Deputy District Judge ordered that (i) the Appellant s application dated on its face the 5 th March 2015 is refused and the claim is struck out; and (ii) the Appellant do pay the Respondent s costs of the proceedings summarily assessed in the sum of 4,750.00 payable within 21 days. Having made those orders he did not make any findings or decision in respect of the Respondent s application as suggested by the Respondent s counsel as, quite properly conceded by Mr White before this Court, there had not been argument on the point as the hearing focused upon the Appellant s application. The Application for Permission to Appeal and the Appeal 18. By an Appellant s notice, dated the 28 th April 2014, the Appellant seeks (1) permission to appeal the orders of District Judge Talog-Davies; and, if successful, (2) to appeal the same. That was supported by Grounds of Appeal dated the same day. By order of His Honour Judge McKenna of the 27 th August 2015 the applications were listed for hearing now with a time estimate of 3 hours, and come before me today for the first time. The Appeal Bundle 19. I have had the benefit of reading the Appeal Bundle which includes, inter alia:- (a) The Appellant s Notice, dated the 28 th April 2015 at page 1-8; (b) The Grounds of Appeal, dated the 28 th April 2015 at pages 9-13; 4
(c) The Appellant s Skeleton Argument, dated the 22 nd April 2015 by Mr de Rohan at pages14-18; (d) A witness statement by Mr Richard Prescott of Prescott solicitors, dated the 28 th April 2014 at pages 19-34; (e) The Respondent s Notice, undated, at pages 35-60; (f) The order of District Judge Talog-Davies, dated the 9 th April 2015 at page 61; (g) The transcript of the hearing of the 9 th April 2014 at pages 62-89; and (h) The Approved transcript of the judgment of District Judge Talog-Davies at pages 90-94. 20. In addition I was also supplied with the following;- (a) The Respondent s Supplementary Note for the appeal, dated the 30 th September 2015; (b) The Respondent s Authorities Bundle including:- (1) Part 3.7; 7.6 and 23.5 of the Civil Procedure Rules as set out in Civil Procedure Volume 1 the White Book ; (2) Lincolnshire County Council v Mouchel Business Services Limited [2014] EWHC 352; (3) Barnes v St Helens Metropolitan Borough Council [2006]EWCA Civ 1372; (4) Page v Hewetts [2012] EWCA Civ 805; (5) Page v Hewetts [2013] EWHC 2845 (Ch); (6) Collier v Williams [2006] 1 WLR 1945; (7) Sands and another v Singh and Others [2015] EWHC 2219 (Ch); and (8) Hallam Estates v Michael Stainer v Baker [2014] EWCA Civ 661; (c) The transcripts of two cases relied upon by the Appellant, namely (i) Steele v Mooney and Others [2005] EWCA Civ 96; and (ii) Imperial Cancer Research Fund, Cancer Research UK v Ove Arup & Partners Limited, Ove Arup & partners International Limited [2009] EWHC 1453(TCC); and (d) A photocopy of pages 3152 and 3153 Section 10: Court Fees in the White Book. 21. I also had the benefit of hearing detailed and thorough submissions by both counsel. The Grounds of Appeal 22. Although this is an appeal in relation to a case management decision, it is submitted on behalf of the appellant that since the claim was struck out the issue is of sufficient significance to justify the costs of the appeal. 23. There are six criticism of the Learned District Judge such that it is argued his decision was wrong in law or alternatively unjust because of serious procedural or other irregularities, namely:- (a) He failed to find pursuant to Part 23.5 of the Civil Procedure Rules (the CPR ) that the Appellant s application was made when it was received by the Court regardless of non-payment of the application fee at that time; 5
(b) He failed to find that the Court, having not received payment of the application fee required by Part 3.7(1)(e) of the CPR, should have issued a notice on the Appellant pursuant to Part 3.7(2) and (3) of the CPR requiring payment of the fee by a specified date; (c) Accordingly, he considered the Appellant s application for an extension of time for serving the Claim form under art 7.6(3) of the CPR whereas he should have considered it under Part 7.6(2) as sought; (d) He considered the application be reference to the case of Kaur v CTP Coil Limited whereas he should have had regard to the guidance in Hastroodi v Hancock [2004] EWCA Civ 652; (e) Having observed that there was an error in the Court order dated the 12 th December 2014 in that it did not provide for an extension of time for service of the Claim form and did not provide for the party making the application to apply to vary the order, he ought to have corrected the error by extending the time for service of the Claim form, Particulars of Claim, the Schedule of Dames and the medical report; and (f) Having observed the Appellant s solicitor had been confused as to the rules on an extension of time for service of the Claim form with those relating to an extension of time for service of the Particulars of Claim, Schedule of Loss and supporting medical evidence, it was unjust not to have ordered a further extension of time for serving all of those documents. 24. Finally, the Appellant contends that pursuant to Part 52.11(1)(b) of the CPR this court is invited to order a rehearing of the Appellant s application. The Respondent s Notice 25. By the Respondent s Notice, dated the 18 th June 2015 the Respondent indicated that it wishes the appeal Court to uphold the order of the lower Court for reasons different from and additional to those given by the lower Court, namely:- (a) The Appellant s application of November 2014 was late and so should have been considered under Part 7.6(3) of the CPR. That point although not abandoned was no longer pursued before this Court; (b) Even if the Appellant s application of the 5 th March 2015 is treated by the Court as having been received by the Court Office - although no fee was sent, the same was sent to Northampton and not Birmingham the County Court to which the case had been transferred on the 16 th January 2015. Therefore, by virtue of Part 23.2(2) of the CPR the application was sent to the wrong place; (c) Further, if the case falls to be considered under Part 7.6(2) of the CPR there is no reason or, in the alternative, no good reason, for late service of the claim Form; and (d) Finally, if the case falls within Part 7.6(2) of the CPR there is no good reason for the late service of the Particulars of Claim, Schedule of Loss or the medical evidence. The Law The Civil Procedure Rules Part 3.7 Sanction for Non-Payment of Certain Fees 6
26. Part 3.7 (1)(e) of the CPR provides that the rule applies where the fee payable for a hearing specified by the relevant Fees Order is not paid. Part 3.7(2) provides that the Court will serve a notice on the claimant requiring payment of the fee specified in the relevant Fees Order if, at the time the fee is due, the claimant has not paid it or made an application for full or part remission. Part 3.7(3) of the CPR provides that the notice will specify the date by which the claimant must pay the fee. Part 3.7(4) of the CPR provides that if the claimant does not (a) pay the fee; or (b) make an application for full or part remission of the fee by the date specified in the notice (i) the claim will automatically be struck out without further order of the Court; and (ii) the claimant will be liable for the costs which the defendant has incurred unless the Court orders otherwise. Part 7.5 Service of a Claim Form 27. Part 7.5(1) of the CPR provides that where the Claim Form is served within the jurisdiction, the claimant must service the same within four months after the date of issue of the Claim Form. Part 7.6 Extension of Time for Serving a Claim Form 28. Part 7.6(1) of the CPR provides that the claimant may apply for an order extending the period for compliance with rule 7.5 service of a Claim Form before midnight on the calendar day four months after the date of the issue of the Claim Form. Part 7.6(2) provides that the general rule is that an application to extend the time for compliance with rule 7.5 must be made (a) within the period specified by rule 7.5; or (b) where an order has been made under this rule, within the period for service specified by that order. Part 7.6(3) provides that if the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the Court may make such an order only if (a) the Court has failed to serve the Claim Form; or (b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and (c) in either case, the claimant has acted promptly in making the application. Part 23 General Rules about Applications for Court Orders 29. Part 23.2(2) of the CPR provides that if a claim has been transferred to another Court, or transferred or sent to another County Court hearing centre since it was started, an application must be made to the Court or the County Court hearing centre to which the claim has been transferred or sent, unless there is good reason to make the application to a different Court. 30. Part 23.5 of the CPR provides that where an application must be made within a specified time, it is so made if the application notice is received by the Court within that time. The Appellant s Case 31. In summary, Mr de Rohan argued that the decisions of District Judge Talog-Davies were, quite simply, wrong. It was conceded that the Appellant s solicitor had forgotten to enclose a fee, as required, with the application. For his failure he was abjectly apologetic. However, it was submitted on behalf of the Appellant that the Learned District Judge should have found pursuant to Part 23.5 of the CPR that the application for an extension 7
of time was made when it was received by the Court. In short, the fact that there was a non-payment of the fee was irrelevant to the decision as to the date upon which the application was made. 32. The Appellant contends that as the Court office did not receive the application fee it was required by Part 3.7(1)(e) of the CPR to issue a notice to the Appellant pursuant to Part 3.7(2) and (3) of the PPR requiring payment of the fee by a specified date. No such notice was ever sent and the Court merely returned the application to the Appellant s solicitor some two weeks later by which time the period specified by Deputy District Judge Pickup in his order of the 10 th December 2014 - the 10 th March 2015, had expired. 33. In addition, the fact that the Appellant s solicitor sent the application to Northampton rather than Birmingham to where the case had been transferred, was another irrelevancy and, in any event, notice of transfer had not been received by the Appellant s solicitors. On questioning it appeared that the Appellant s solicitor was aware that Northampton had made an order that the case was to be transferred to Birmingham but had not received confirmation by the Court that transfer had taken place. 34. The Appellant submitted that District Judge Talog-Davies determined the application on the wrong basis, that is, pursuant to the more restrictive Part 7.6(3) of the CPR whereas he should have considered it under the more forgiving provisions of Part 7.6(2) of the CPR. Therefore, it was submitted that the Learned district Judge wrongly considered that he was bound by the case of Kaur v CTP Coil Limited rather than the guidance of Hashtroodi v Hancock. 35. Mr de Rohan argued that pursuant to Part 52.11(1)(b) of the CPR the Court should rehear the Appellant s application. He contended that if the Deputy District Judge had considered the application under Part 7.6(2) of the CPR he would have found that he was not required to be satisfied that the Appellant had taken all reasonable steps to serve the documents in question by the 10 th March 2015 but had provided a good reason for non-service of the same and that the overriding objective would be furthered by the granting of the application. Further, this was not a case where the Appellant s solicitor merely overlooked service of the Claim Form. 36. It was submitted on behalf of the Appellant that, in the alternative, having observed that the Appellant s solicitor was confused by the rules relating to extension of the time for service of the Claim Form with those relating to the other documents, it was unjust not to have ordered a further extension of time for serving all the documents. That was, it was submitted, particularly so in view of the Court s error in drawing the order of the 12 th December 2014. Therefore, the Learned District Judge should have ordered a further extension of time and the Appellant Court, on a rehearing of the application, was invited to so order. 37. Mr de Rohan submitted that the Learned District Judge had reached his decision based upon his view that usual practice was to apply for an extension of time to serve the Claim 8
Form if in difficulty with serving the same but not when the litigator had failed to get the medical evidence in order. Further, the Learned Judge s decision was based upon his view that where there was difficulty in obtaining such medical evidence the usual course was to serve the Claim Form and seek an extension for serving the Particulars of Claim and medical evidence in support. He argued that was one course but the cases of Steele v Mooney and Others [2005] EWCA Civ 96 and Imperial Cancer Research Fund, Cancer Research UK v Ove Arup & Partners Limited, Ove Arup & Partners International Limited [2009] EWHC 1453 (TCC) reveal that there is an alternative and acceptable course. 38. Mr de Rohan relied upon the words of Dyson LJ in Steele v Mooney to the effect that the claimant had a good reason for nor serving the Claim form within the period prescribed by Part 7.6(2) of the CPR and for requiring a further few weeks and The claimant s solicitors behaved sensibly and responsibly in not serving proceedings when they did not know whether the claimant had a claim which had a real prospect of success against any, and if so which, of the three defendants. They could not responsibly proceed without the support of an expert, and the reason they needed the extension of time was that they were awaiting the expert s report. The report was delayed because the first defendant himself had no responded to proper requests for his clinical notes. Mr de Rohan argued that in this case the Appellant s solicitor was in a similar position and the course he adopted was quite proper and a sensible alternative to the course advocated by the Learned District Judge. He quipped that there is more than one way to skin a cat and the Appellant s solicitor had merely chosen a different but, still acceptable, course of action. 39. Mr de Rohan also relied on the case of Imperial Cancer Research Fund v Ove Arup & Partners Limited in which Steele v Mooney was followed, where at the end of the four month period for the service the claimant s solicitors were not in a position where they could properly make allegations of professional negligence against the defendants or their contractors and the Court held the claimant s solicitors behaved sensibly and responsibly in not wishing to serve the Claim Form until they were in a position when they knew whether they had a cause of action against a particular party. 40. In Imperial Cancer Research Fund v Ove Arup & Partners Limited Ramsey J observed that the provisions of Part 7.6 of the CPR and, in particular, the proper approach to an application to extend the period within which the Claim Form may be served when that application is made within the period set out in Part 7.6(2) had been considered by the Court of Appeal in the cases of Hashtroodi v Hancock; Steele v Mooney; Collier v Williams and Hoddinott v Persimmon Homes (Wessex) Limited [2008] 1WLR 806. While noting that the decisions depend on the particular facts he stated that they contain general guidance on the approach of the Court to an application to extend time for service of the Claim Form. That guidance bears repetition. 41. In summary Ramsey J stated, inter alia, that:- 9
(a) The general rule - pursuant to Part 7.5(1), is that the Claim Form must be served within 4 months after issue; (b) In relation to an application under Part 7.6(2) of the CPR, that rule does not impose any threshold condition on the right to apply for an extension of time. The discretion to extend time should be exercised in accordance with the overriding objective identified in Part 1.1 of the CPR to deal with cases justly and at proportionate cost. Hashtroodi v Hancock; (c) In order to deal with an application under Part 7.6(2) justly it will always be relevant for the Court to determine and evaluate the reason why the claimant did not serve the Claim Form within the specified period. Hashtroodi v Hancock; (d) The preconditions of Part 7.6(3) of the CPR do not apply to Part 7.6(2) but those requirements will always be relevant to the exercise of discretion on an application under Part 7.6(2) but the fact that the conditions are not satisfied is not necessarily determinative of the outcome of a Part 7.6(2) application. Collier v Williams; (e) The matters which the Court may take into account include the following in relation to the reason why the Claimant has not served the Claim Form within the specified period:- (I) Whether the claim has become statute barred since the date on which the Claim Form was issued is a matter of importance. If there is doubt as to whether a claim has become time-barred since the date on which the Claim Form was issued, it is not appropriate to seek to resolve the issue on an application to extend time for service or an application to set aside an extension of time for service. In such a case, the approach of the Court should be to regard the fact that an extension of time might disturb a defendant who is by now entitled to assume that his rights can no longer be disputed as a matter of considerable importance when deciding whether or not to grant an extension of time for service. Hashtroodi v Hancock and Hoddinott v Persimmon Homes (Wessex)Limited; (II) Whether before the expiry of the four month period the nature of the claim (III) was brought to the attention of the Defendant; and Whether a party was in a position where it could not determine whether the claim had real prospects of success and could not responsibly proceed against the Defendant without an expert report which was delayed awaiting a response to proper requests for information from the Defendant s solicitors. Steele v Mooney; (f) In considering whether to set aside an order granting an extension of time it is not a relevant consideration that the Claimant has proceeded in reliance of an extension of time granted on a without notice application. Hoddinott v Persimmon Homes (Wessex)Limited; and (g) In relation to the reason why the Claim Form has not been served, then:- (I) Where the Claimant has taken all reasonable steps to serve the Claim Form but has been unable to do so, the Court will have no difficulty in deciding that there is a very good reason for the failure to serve. Hashtroodi v Hancock; 10
(II) (III) If the reason why the Claimant has not served the Claim Form within the specified period is that he or his legal representative simply overlooked the matter, that will be a strong reason for the Court refusing to grant an extension of time for service. Hashtroodi v Hancock; and Whilst the view could be taken that justice requires a short extension of time to be granted even when the reason for failure to serve is the incompetence of the Claimant s solicitor, especially if the claim is substantial, there are limitation periods and a claimant has four months in which to serve the Claim Form, which does not have to contain full details but only a concise statement of the nature of the claim. Hashtroodi v Hancock. The Respondent s Case 42. Mr White on behalf of the Respondent drew attention to the provisions of Part 7.6(2) and (3) of the CPR and the helpful analysis of the relevant authorities in the case of Lincolnshire v Mouchel Business Services Limited [2014] EWHC 352 in particular the words of Stuart-Smith J namely:- Where a party issues protective proceedings hard up against the expiry of the limitation period, it is expected to pursue those proceedings promptly and effectively; and if it subsequently seeks and obtains orders extending time for service of the Claim Form or Particulars of Claim without notice to the other party, it dices with procedural death. These simple propositions should be known to all professionals conducting litigation. They were established long before the recent reforms of the Civil Procedure Rules. 43. Further, the Respondent drew attention to Stuart-Smith J s reference in the judgment to the fact that the approach to now be adopted when considering applications for extension of time had been clearly set out by the Court of Appeal in Mitchell v News Group Newpapers Limited [2013] EWCA Civ 1537 and in which it was also stated:- A similar approach to that which we have just described has been adopted in relation to applications for an extension to the period of validity of a claim under CPR 7.6. In Hashtroodi v Hancock [2004] EWCA Civ 652 this court said that (i) the discretion to extend time should be exercised in accordance with the overriding objective and (ii) the reason for the failure to serve the claim form in time is highly material. At paragraph 19 the court said: If there is a very good reason for the failure to serve the Claim Form within the specified period, then an extension of time will usually be granted...the weaker the reason the more likely the court will refuse to grant the extension. 44. It was submitted on behalf of the Respondent that the Appellant s reliance upon Part 3.7(1)(e) of the CPR is misplaced as the Appellant did not fail to pay a fee for a hearing having sought for the matter to be dealt with on paper without a hearing. In short, it is not a Part 3.7(1)(e) case and not does it fall within the scope of any other part of the rule. It was submitted that, therefore, this was not a case in which the Court ought to have 11
served a notice requiring payment of the fee but nonetheless allowed the application to proceed regardless of the non-payment. 45. Rather, it was submitted, this was a situation akin to filing a Claim Form with no fee. In that scenario the Court will not issue the Claim form. In short the claim is issued when it is delivered to the Court with the appropriate fee. Barnes v St Helens Metropolitan Borough Council [2007] 1 WLR 879. Mr White contended that made good sense given the purpose that periods of limitation and extension of time are designed to achieve. He noted that it is no surprise that a claim purportedly issued without a fee is not issued by the Court. Page v Hewetts [2012] EWCA Civ 805. He argued that by analogy it is right that an attempt to extend time without a fee is treated as invalid and added that the analogy is better made with the case of Page v Hewetts than it is with Part 3.7 of the CPR. Mr White observed that in Page v Hewetts the Court considered the risk of not filing the right fee when issuing ought to fall on the claimant. Further, he submitted, there is no difference in principle between the first fee upon issue of the proceedings and later fees necessary in order to apply to extensions of time. 46. The Respondent submitted that the Appellant s reliance on Part 23.5 misstates the purpose of that rule which effectively provides that an application is made when received by the Court and not when it is heard or determined by the Court or even when date stamped by the Court (which is evidence of the date of receipt). Further, it is not an exception to the general rule that Court fees must be paid. In short, if the application did not have a fee with it then it is not a properly constituted application as found by the Learned Deputy District Judge. The Respondent contends that fits with the thinking in the case of Collier v Williams [2006] 1 WLR 1945 both in that (a) the purpose of the rule is to say that the application is made when the court receives it and not when the Court hears it; and (b) the rationale for that is the applicant is in control only of when the Court receives the application and not when it hears it. 47. Further, the Respondent submitted that as the applicant is in control of when the Court receives the fee, the logic of Collier v Williams is consistent with time not stopping to run when the application is received without the fee which error is also the responsibility of the applicant. In addition, Mr White referred to the obiter comments of the Court of Appeal in Collier v Williams as to when the Court issued an application, adding that it was self evident that the Court will not issue the application, even if an application notice has been received, if no fee has been paid. 48. The Respondent accepted that it seems harsh since the effect of it was that the Appellant s claim failed without consideration of the merits of his case due to the failure on the part of his solicitor to pay a Court fee of 50.00 on time. However, Mr White reminded the Court of the numerous authorities which caution that a party leaving things to the last minute runs a very serious risk. Further, the existence of that risk is important to the running of litigation generally since it promotes (a) doing things in plenty of time; and (b) paying fees. 12
49. In the alternative the Respondent submitted that the Learned Deputy District Judge ought to have held that the application of March 2015 was not properly made because it was not sent on time before the expiration of the extension period, to the right Court. Mr White asserted that if, contrary to his earlier submissions, Part 23.5 of the CPR is found to have the meaning which the Appellant seeks, the Appellant nevertheless sent the application, albeit in time, to the wrong Court. The notice of transfer of proceedings is dated January 2015. However, the Appellant s solicitor sent the application for an extension of time to the County Court at Northampton on the 5 th March 2015. The Respondent asserted that the mandatory provision of Part 23.2(2) of the CPR provides that the application should have been sent in time to the Court to which the case had been transferred Birmingham. When it reached Birmingham is unknown but what is known is that Birmingham Civil Justice Centre were seized of the application on the 18 th March 2015 after the expiration of the extension period, and without the fee. 50. The Respondent submitted that, in all the circumstances, the Court cannot be satisfied that the application was made to the appropriate Court Birmingham, in time even if it was not necessary for a fee to accompany the application. 51. During the course of submissions it became clear that whilst the Respondent s solicitors accept they received a General Form of Transfer informing the parties that the case had been transferred to Birmingham, dated the 19 th January 2015, the Appellant s solicitors indicated, for the first time, that he had not received the same. The Appellant s solicitor indicated that he knew the proceedings were to be transferred but had not received confirmation of the same. However, the Respondent s solicitors received a notice from the County Court at Birmingham, dated the 14 th February 2015, listing their application to set aside the order of the 22 nd December 2014 on the 9 th April 2015 on notice by which, of course, it meant on notice to the Appellant. The Respondent s solicitors assert that they sent a copy of the application to set aside, the Court order and notice to the Appellant s solicitor with an accompanying letter, dated the 23 rd February 2015, which would have placed them on notice if not already aware, that the matter had been transferred to Birmingham. Therefore, it seems that the Appellant s solicitor was on notice that the matter had been transferred to Birmingham, at the latest, by the 23 rd February 2015. 52. The Respondent originally submitted that even if the application of March 2015 was in time despite the absence of a fee and or being sent to the wrong Court, the earlier application of the 17 th November 2014 was received by the Court on the 26 th November 2014 as evidenced by the date stamp of the Court, and so after the expiration of the date previous set for the extension of time namely the 25 th November 2014. That point although not abandoned by the Respondent, was, quite properly, not pursued by Mr White at the appeal hearing. 53. Careful examination of the file by the Court revealed that although the accompanying letter to the November 2014 application bore a Court stamp which read 26.11.2014 County Court Money Claims Centre it also bore a further stamp which read 19.11.2014 13
County Court Bulk Centre. The significance being that the latter stamp suggests that the application was received by the Court prior to the expiration of the extension. 54. The Respondent submitted that the Learned Deputy District Judge was correct to determine that the Appellant could not overcome the hurdle of Part 7.6(3) of the CPR namely that all reasonable steps had been taken to comply with rule 7.5. Further, the Respondent contended that even if the Appellant s application fell to be considered under Part 7.6(2) it would have failed and the Respondent s application of December 2014 to strike out would have succeeded. 55. In summary, Mr White contended that there was no justification for the lateness of service of the Claim Form. Further, he drew attention to a number of comments made by the Learned District Judge within his judgment to the effect that applications for extension of time in serving the Claim form are usually sought where there is difficulty serving the same and one would not usually seek such an extension on the basis that time was need to place medical evidence in order. The Judge observed that in such a case a litigator would usually serve the Claim form and then ask for an extension of time to serve the Particulars of Claim, Schedule of loss and medical evidence. Mr White noted that the Learned District Judge commented there does not seem to me to be any reason why the claim form could not have been served. 56. The Respondent submitted that there is a distinction to be drawn between the Claim Form and the Particulars of Claim and as the Court of Appeal indicated in the case of Lincolnshire County Council v Mouchel Business Services Limited [2014] EWHC 352 something that maybe a sufficient reason for delaying the service of the Particulars of Claim is not necessarily a reason for delaying service of the Claim Form. The Respondent submitted that no reason whatsoever had been advanced for the Appellant s failure to serve the Claim Form in this case. Mr White submitted that the matter is straightforward and did not require significant argument and if the Court agrees the decision of the lower Court should be upheld albeit for different reasons. If, however, this Court takes the view that the issue is not clear cut, the matter could be dealt with on appeal or remitted. 57. The Respondent submitted that even if the Appellant s application fell to be considered under Part 7.6(2) of the CPR, it would have failed and the Respondent s application of December 2014 would have succeeded as there was no good reason for the lateness of the medical evidence. It was submitted that the lateness of the Particulars of Claim and Schedule of Loss flows from the same source. In short, the Appellant s solicitor had failed to obtain medical evidence that is required to advance the claim. Further, the Court must be satisfied that there was a good reason for the extension of time and, simply, the Court cannot be so satisfied. Mr White contended that the statements of Mr Prescott in support of the applications for extension, revealed delay after delay. There was no explanation as to why it took until the end of the limitation period before consideration was given to instructing an expert. Nor was there evidence as to why consideration was not given to instructing an expert after the limitation period has expired but earlier in the life of the 14
Claim Form. Mr White commented that those matters should have been addressed in Mr Prescott s first statement but were not. 58. The Respondent submitted that there is no explanation why the Appellant s solicitor did not instruct an expert, having decided to do so, within the first extension namely until the 25 th November 2014. Instead Mr Prescott merely indicated in his statement that the Appellant gave instructions on the medical records. Mr White submitted that cannot constitute good reason for failing to instruct an expert. He observed, there is no evidence of when the records were sought although the Respondent s solicitors asked for the same as long ago as March 2013, or when instructions were sought or given. Mr White submitted that although the Appellant s solicitor purported to inform the Court of the reason for the delay he had, in fact, not done so. 59. The Respondent submitted that although the Court gave a further extension until the 10 th March 2015 the Appellant s explanation for not obtaining a medical report within that time is that the first instructed expert was slow in doing the work and was, therefore, abandoned and the second expert was unable to report in time instead only being able to report with 6-8 weeks of the 1 st March 2015. The Respondent submitted, with considerable force, that it is quite clear the Appellant was always going to need such medical evidence. Therefore, to argue that the experts were slow in the second extension granted by the Court is not a good reason why all the previous time had passed without any action. Further, the Court cannot be satisfied that it is good reason within the second extension granted by the Court as (a) there has been a failure to provide all of the relevant correspondence; and (b) even assuming the chronology set out in Mr Prescott s statement of March 2015 is complete, there is no evidence why the Appellant already in the second extension period, waited until the 5 th January 2015 before seeking to find out what was happening. Mr White criticised the apparent disregard by the Appellant s solicitor for (a) the basic principle that if a defendant is to be sued at all it has a right for the claim to be issued in time and served in time; or (b) the Jackson reforms and the supposed tightening up of the Court Rules and deadlines. 60. The Respondent submitted that there is no good reason for the Appellant and those who represent him for not having medical evidence ready within (i) the three year limitation period; (ii) during the 4 month period of the validity of the Claim form following its issue; (iii) during the first three month extension of time for service; (iv) during the subsequent extension of time; or (v) to date. Further, the Respondent submitted that if the Appellant s solicitor had made some serious attempt to comply with the pre-action protocol he might have been able to pray that all in aid. However, he is unable to do so. The Respondent asserted that after a letter before action led to a request by the Respondent s solicitors for disclosure in March 2013, nothing appears to have been done until the Claim form was issued at the last minute and then repeated without notice applications for more time were made. 61. The Respondent submitted that as at the date of its second response to the appeal, the 30 th September 2015, medical evidence had still not been served by the Appellant despite 15
requests for the same on the 24 th June; 2 nd July and 14 th September 2015 by the Respondent s solicitors. He asserted that it was over 4 years and 4 months since the index incident which gave rise to these proceedings and the Appellant had not yet served its medical evidence. 62. On behalf of the Respondent Mr White accepted that the Court was not in a position to judge the merits of the Appellant s claim not least of which because it did not have any medical evidence before it in respect of causation, but noted that the claim was very speculative. He asserted that in so far as the Respondent owed a duty of care in the circumstances following the index incident, it was only to act reasonably and in a situation where there were a number of options available to those involved, the Respondent took a decision to take the Appellant to a nearby hospital as soon as possible. It is submitted that is unlikely to be considered a breach of the duty of care owed. Further, it was submitted that it was not likely to be considered a breach of that duty of care that the respondent was unaware that Kidderminster Hospital would refer a potential stroke patient to a different hospital. 63. Mr White on behalf of the Respondent sought to rely upon a number of authorities in support of his submissions. He referred to the case of Barnes v St Helens Metropolitan Borough Council in which Tuckey LJ stated that the Limitation Act 1980 can perfectly properly be construed so that in the context of the CPR a claim is brought when the claimant s request for the issue of a Claim Form together with the Court fee, is delivered to the Court Office. Tuckey LJ having made it clear that he had looked at the words of the statute and Rules expecting to find the expiry of a limitation period fixed by reference to something which the claimant has to do, rather than something, which someone else such as the Court has to do. Mr White also drew the Court s attention to the case of Page v Hewetts where the Court of Appeal held that the construction favoured by the Court in the case of Barnes v St Helens Metropolitan Borough Council was based on risk allocation. In short, a claimant s risk stopped once he had delivered his request to the Court Office so that the would-be litigant was not responsible for any shortcomings of the Court. 64. Mr White drew attention to the case of Sands v Appleyard v Singh and others [2015] EWHC 2219 (Ch). In that case the applicant presented the correct fee to the Court within time but the Court refused to accept it taking a lower fee. His Honour Judge Purle Q.C. held the application was made when the papers were lodged with the Court and the appropriate fee was tendered. The rationale is quite clear. In so ruling it removed the vagaries of the court system from the process as an applicant cannot and should not be faulted where they have done everything right but the Court has made a mistake. Further, it was held that proceedings are brought before issue by delivery of the relevant papers to the Court and that applied not just to limitation but also to the making of applications generally. Mr White submitted that is of relevance to the present case since it shows that the Appellant s solicitor did not make the application dated the 5 th March 2015 in time since no fee was tendered at that stage. 16
The Analysis 65. I have already set out (a) the provisions of Part 7.5, 7.6(2) and (3) of the CPR ; and (b) an analysis of the approach of the Courts to an application to extend the time for service of the Claim Form when that application is made within the period set out in Part 7.6(2) earlier within this judgment. However, a brief synopsis of those rules and guidance - which forms part of the analysis and decision making process, at this stage is helpful. 66. In summary, by virtue of Part 7.5(1) of the CPR a Claim Form must be served within 4 months after issue. However, by Part 7.6(1) the Claimant may apply for an order extending the period for compliance with rule 7.5. The general rule, by virtue of Part 7.6(2) is that an application to extend the time for service must be within the period specified by rule 7.5 four months, or where an order has been made under the rule within the period specified by that order for service. By Part 7.6(3) if, however, an application for an order to extend the time for service is made after the end of the four months specified by rule 7.5 or by an order made under the rule, the Court may only make such an order if (a) the Court has failed to served the Claim Form or (b) the Claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and (c)in either case, has acted promptly in making the application. 67. As to an application under Part 7.6(2) of the CPR, that rule does not impose any threshold condition on the right to apply for an extension of time. The discretion to extend time should be exercised in accordance with the overriding objective identified in Part 1.1 of the CPR to deal with cases justly and at proportionate cost. In order to deal with an application under Part 7.6(2) justly it will always be relevant for the Court to determine and evaluate the reason why the Claimant did not serve the Claim Form within the specified period. However, the preconditions of Part 7.6(3) of the CPR do not apply to Part 7.6(2) but those requirements will always be relevant to the exercise of discretion on an application under Part 7.6(2) but the fact that the conditions are not satisfied is not necessarily determinative of the outcome of a Part 7.6(2) application. 68. The matters which the Court may take into account include the following in relation to the reason why the Claimant has not served the Claim Form within the specified period, namely whether (i) the claim has become statute barred since the date on which the Claim Form was issued is a matter of importance; (ii) before the expiry of the four month period the nature of the claim was brought to the attention of the Defendant; and (iii) a party was in a position where it could not determine whether the claim had real prospects of success and could not responsibly proceed against the Defendant without an expert report which was delayed awaiting a response to proper requests for information from the Defendant s solicitors. In relation to the reason why the Claim Form has not been served. Where the Claimant has taken all reasonable steps to serve the Claim Form but has been unable to do so, the Court will have no difficulty in deciding that there is a very good reason for the failure to serve. However, where the reason why the Claimant has not served the Claim Form within the specified period is that he or his legal representative simply overlooked the matter, that will be a strong reason for the Court refusing to grant an extension of time for service. 17
69. In this case it is agreed that the decision by the Respondent s manager to have the Appellant driven to hospital following his stroke rather than wait for the ambulance to arrive which decision the Appellant contends was negligent and upon which the action is based, occurred on the 4 th May 2011. Therefore, the primary limitation period expired on the 3 rd May 2014. The Appellant s solicitor issued the Claim Form on the 26 th April 2014. That is just seven days short of the expiration of the primary limitation period. 70. The words of Stuart-Smith J in Lincolnshire v Mouchel Business Services Limited [2014] EWHC 352, which I have already set out within this judgment, to the effect that where a party issues protective proceedings close to the expiration of the limitation period it is expected that (a) it will pursue the proceedings promptly and effectively; and (b) if it subsequently seeks and obtain orders extending the time for service of the Claim Form, it dices with procedural death are pertinent and wise words of warning. Failing to serve the Claim Form once the primary limitation period has expired and having to seek not once or two but three extensions of time for service of the same is, in short, a course of action fraught with danger. 71. Where such a course is necessary as the Appellant contends it was in this case as he had to obtain expert medical evidence in order to justify his action against the Respondent, it falls on the Appellant and his legal advisors to ensure that the proceedings and any subsequent applications for extension of time are correct. That is are sent to the appropriate court, in the appropriate format and, if necessary, with the correct fee. 72. I have already referred to the guidance from the Court of Appeal in the case of Hashtroodi v Hancock [2004] EWCA Civ 652 where the Court held that (i) the discretion to extend time should be exercised in accordance with the overriding objective; and (ii) the reason for the failure to serve the Claim Form in time is highly material. In short, if there is a good reason for the failure to serve the Claim Form within the specified period then an extension will usually be granted but the weaker the reason the more likely the Court will refuse to grant the extension. 73. The Appellant s case is, quite simply, that the decision of Deputy District Judge Talog- Davies is wrong in that the Learned Judge should have found that:- (a) pursuant to Part 23.5 of the CPR the Appellant s application for further extension of time, dated the 5 th March 2015, and sent to the Court before the expiration of the extension period the 10 th March 2015, was made when it was received by the Court; (b) the fact that the application fee was not sent with the application was irrelevant to the decision as to the date on which the application was made; (c) having not received a fee with the application as required by Part 3.7(1)(e), the Court Office should have issued a notice to the Appellant pursuant to Part 3.7(2) and (3) requiring payment of the fee by a specified date but failed to do so; and (d) the fact that the application was sent to the wrong Court Northampton rather than Birmingham, is explained by the fact that at this hearing the Appellant s solicitor 18
indicated through counsel that confirmation of the transfer had not been received by his firm. 74. I find that the Appellant s reliance on Part 23.5 misunderstands the purpose of that rule which provides that an application is made when received by the Court and not when it is heard or determined by the Court or even when date stamped by the Court. It is not an exception to the general rule that Court fees must be paid. If the application did not have a fee with it was not a properly constituted application as found by the Learned Deputy District Judge. I accept the submissions on behalf of the Respondent on the point. 75. Further, I find that the Appellant s reliance upon Part 3.7(1)(e) of the CPR is misplaced as the Appellant did not fail to pay a fee for a hearing having sought for the matter to be dealt with on paper without a hearing. In short, this is not a Part 3.7(1)(e) case. Nor does it fall within the scope of any other part of the rule. Therefore, this was not a case in which the Court ought to have served a notice requiring payment of the fee but nonetheless allowed the application to proceed regardless of the non-payment. Again I accept the submissions on behalf of the Respondent upon the issue. 76. In addition, I accept the submissions on behalf of the Respondent that this was a situation akin to filing a Claim Form with no fee. In that scenario the Court will not issue the Claim Form. In short the claim is issued when it is delivered to the Court with the appropriate fee. The rationale being the purpose that the limitation period and extensions of time are designed to achieve. Further, I accept his submission that by analogy an attempt to extend time without a fee is treated as invalid. Put bluntly, the risk of not filing the right fee when issuing ought to fall on the applicant. Further, there is no difference in principle between the first fee upon issue of the proceedings and later fees necessary in order to apply to extensions of time. 77. Further, I accept the submissions on behalf of the Respondent that as the Appellant was in control of (a) whether; (b) when; and (c) where the Court received the fee, the logic of Collier v Williams is consistent with time not stopping to run merely when the application is received without the fee and in the wrong Court. Any errors were the responsibility of the Appellant and his legal advisors. It is self evident that the Court will not issue the application, even if an application notice has been received, if no fee has been paid. 78. I accept such a finding seems harsh since the effect of it was that the Appellant claim failed without consideration of the merits of his case due to the failure on the part of his solicitor to pay a Court fee on time. However, as I have already indicated there numerous authorities which caution that a party leaving things to the last minute runs a very serious risk. In short, if applications are made at the last minute there may be insufficient time for errors in the application to be corrected. That is particularly important when an extension of time is required. The existence of that obvious risk is important to the running of litigation generally in that it promotes doing things in plenty of time; paying fees with application. 19
79. The matter does not rest there. In the alternative the Respondent s case is that the Learned Deputy District Judge ought to have held that the application of March 2015 was not properly made because it was not sent on time before the expiration of the extension period, to the right Court. In summary, even if the Court found that Part 23.5 of the CPR has the meaning which the Appellant seeks, the Appellant nevertheless sent the application, albeit in time, to the wrong Court. 80. It is clear that the notice of transfer of proceedings to Birmingham is dated January 2015. However, the Appellant s solicitor sent the application for an extension of time to the County Court at Northampton on the 5 th March 2015. The Respondent asserted that the mandatory provision of Part 23.2(2) of the CPR provides that the application should have been sent in time to the Court to which the case had been transferred Birmingham. When it reached Birmingham is unknown but what is known is that Birmingham Civil Justice Centre were seized of the application on the 18 th March 2015 after the expiration of the extension period, and without the fee. 81. During this appeal the issue of why the Appellant s solicitor had sent the March 2015 application to Northampton as opposed to Birmingham was canvassed. The Respondent s solicitors contended they received a General Form of Transfer informing the parties that the case had been transferred to Birmingham, dated the 19 th January 2015. However, the Appellant s solicitor indicated, for the first time, that he had not received the separate notice of transfer of proceedings, of the same date. The Appellant s solicitor indicated that he knew the proceedings were to be transferred but had not received confirmation of the same. However, the Respondent s solicitors received a notice from the County Court at Birmingham, dated the 14 th February 2015 listing their application to set aside the order of the 22 nd December 2014 on the 9 th April 2015 on notice by which, of course, it meant on notice to the Appellant. The Respondent s solicitors assert that they sent a copy of the application to set aside, the Court order and notice to the Appellant s solicitor with an accompanying letter, dated the 23 rd February 2015. That would, of course, have placed the Appellant s solicitor on notice if he was not already aware, that the matter had been transferred to Birmingham. As a result, it seems that the Appellant s solicitor was on notice by that means - even if by no other, that the matter had been transferred to Birmingham, at the very latest, by the 23 rd February 2015. 82. I find that the Learned Deputy District Judge was correct to determine that Part 7.6(3) applied and that the Appellant could not overcome the hurdle of Part 7.6(3) of the CPR - that all reasonable steps had been taken to comply with rule 7.5. Further, even if the Appellant s application fell to be considered under Part 7.6(2) I consider it would nonetheless still have failed. As the Learned District Judge indicated in his judgment there was no justification for the lateness of service of the Claim Form. He indicated that in a case such as this a litigator would usually serve the Claim Form and then ask for an extension of time to serve the Particulars of Claim, Schedule and medical evidence, adding there does not seem to me to be any reason why the claim form could not have been served. 20