“Can you issue court proceedings to protect the time bar?” is an instruction solicitors receive on a regular basis. The answer is, of course, yes. However, the instruction is frequently followed by the request to “hold off” from serving the claim form in order to provide further time to attempt to resolve the dispute.
We discuss below the implication of such instructions, particularly in view of the current COVID-19 crisis.
The position under the Civil Procedure Rules
Under Rule 6 of the Civil Procedure Rules (CPR), once a claim form has been issued, this must be served upon the defendant within four months, if serving within the jurisdiction, and six months if serving outside of the jurisdiction.
So, all being well, the claim form is issued and served well within the deadline.
However, going back to the request to hold off from serving the claim form, the tactic of waiting to serve the claim form came under scrutiny in the case of Lester Viner & Others v Volkswagen Group Ltd & Others [2018] where Senior Master Barbara Fontaine went as far as to say that the delay was “a serious misjudgement”.
As discussed in our earlier article, the court found that the claimants had no good reason not to have served the claim form within the time allowed; it was for purely tactical reasons that the claim form was not served.
This means that whilst the answer remains that, of course, a claim form can be issued, the request to hold off from service will be met with some resistance and rather strict warnings! As soon as the claim form is issued, steps should be taken to serve.
If further time is required to negotiate and avoid further costs, as directed in the Lester Viner case, parties are advised to press on with service and then seek to agree a stay. If the other side is not prepared to agree a stay, it is unlikely that any amicable settlement discussions were going to take place in any event. Accordingly, delaying service would have proved fruitless.
What about delays due to COVID-19?
There are often procedural delays which can mean that service takes weeks, or even months if outside of the jurisdiction, to complete. Therefore, whilst six months may seem like a long time, steps to effect service should be taken as soon as practicable.
However, with the current crisis caused by the global outbreak of COVID-19, service of a claim form is proving ever more difficult.
The best course of action is to ask the defendant to instruct English solicitors to accept service on their behalf. If so, a request can be made to the nominated solicitor to accept service by email. The court has encouraged solicitors to agree to service by email and, in practice, solicitors have been doing so for some time.
If the defendant refuses, or simply does not respond to a request to instruct English solicitors to accept service, alternative service arrangements will need to be considered.
