Service of the claim form out of the jurisdiction – don’t delay

Date published

01/09/2016

Sectors

Locations

When a claim form is issued within the jurisdiction, the claimant must complete the step required (eg posting or delivery to the relevant place) in relation to the particular method of service chosen before midnight on the calendar day four months after the date of issue of the claim form (Civil Procedure Rules Part 7.5).

Where the claim form is to be served out of the jurisdiction, it must be served within six months of the date of issue (CPR 7.5 (2)). However, service out of the jurisdiction is not as straight forward as simply putting the claim form in the post or even employing the services of a process server in the overseas jurisdiction in an attempt to effect service.

In practice, service of a claim form overseas regularly takes several months. For example, the Foreign Process Office at the Royal Courts of Justice estimates that the time for service of a claim form in the United Arab Emirates is approximately 8 months. Therefore, even if the service procedure is commenced the day the claim form is issued, it is unlikely that service will be effected in the required six months. In these circumstances, it will be necessary to request an extension of time for service of the claim form beyond the six month limit.

CPR 7.6 provides that an application to extend time to allow for compliance with CPR 7.5 must be made within the six month service period and such an order can only be made if the claimant has “taken all reasonable steps to comply with Rule 7.5 but has been unable to do so; and… the claimant has acted promptly in making the application” (CPR 7.6 (3)).

The recent case of Michelle Foran v (1) Secret Surgery Ltd (2) Powszechny Zaklad Ubezpieczen Spolka Akcyjna (3) Wojciech Waclawowicz (4) Emc Instytut Medyczny Spolka Ackyjna [2016] EWHC 1029 (QB) highlighted the importance of not waiting until the last minute before making an application seeking to extend time for service of a claim form out of the jurisdiction.

In the Foran case, the claimant undertook a surgical procedure in Poland on 9th May 2012. Initially, the claimant sought advice from a Polish lawyer and was made aware that the limitation period for commencing a claim expired on 8 May 2015. The claimant subsequently instructed English solicitors who sent pre-action protocol letters of claim (in English) to the defendants (in England and Poland) at the end of March 2015. No response to the letters of claim was received and, therefore, on 6 May 2015 a claim form was issued. According to CPR 7.5 (2) the claim form had to be served overseas by 6 November 2015.

On 2 September 2015, the claimant’s solicitors took steps to serve the claim form, particulars of claim, schedule of loss and medical report on the first defendant in England. Steps were then taken for the documents to be translated into Polish and on 21 September 2015, the claimant’s solicitors contacted the Court’s foreign process section who advised that the process of service in Poland could take in excess of three months. In light of this information, the claimant’s solicitors contacted Polish service agents who advised that only the Polish courts could affect service in Poland. On receipt of this information and the realisation that service would not be effected within the six month deadline, on 29 October 2015 the claimant made an ex-parte application for an extension of time.

On 9 November 2015, the Master granted an extension on the papers until 11 January 2016 and listed the application be heard on that date. At the hearing, the Master determined that the application had been made within the limitation period, the claimant’s solicitors had taken reasonable steps to comply with CPR 7.5 and there had been valid reasons for extending time.

The defendants appealed this decision. On appeal, it was held that:

  • The CPR time limits had to be met unless there was good reason. Each case turned on its own facts, but those facts had to be properly evidenced and carefully scrutinised. In the instant case, it was held that the respondent’s (claimant) evidence had not met that threshold, particularly as the limitation period had almost expired before she made her application. The 6 month period was considered to be generous and allowed sufficient time to deal with the difficulties that could be faced in serving out of the jurisdiction. This was not a case where the solicitors had wilfully disregarded the rules, but it was considered that they should have anticipated the problems much sooner and taken “a less leisurely approach”. It was held that delaying service of the claim form until medical evidence was available would not be a sufficient reason, nor would waiting until detailed particulars and supporting documents were available.
  • It was also held that the Master should not have dealt with the application on paper. The Court of Appeal considered that an application for an extension of time for service of the claim form was potentially of critical importance, especially when it was made shortly before the end of the period of service and the cause of action had become time barred. Where time limits were running out, or had run out, such application should be dealt with at an urgent hearing, by telephone if necessary, at which the appropriateness of granting relief should be carefully considered.
  • It was also noted that as the Master granted an extension of time on papers on 9 November 2015, the limitation had already expired.

The appeal was allowed. It was held that the Master’s decision granting an extension of time for service of the claim form was wrong and could not stand. This meant that the claim form could not be served on the overseas defendants and therefore the claimant could not pursue her claim against them.

It is all too easy to wait before taking steps to serve a claim form, either in or outside the jurisdiction, whilst negotiations are on-going in the hope that service will not be required as the claim will be resolved. However, it is often the case that service of the claim form will be required, if only to keep the claim alive.

Therefore, as the Foran case demonstrates, particularly in circumstances where the claim form is to be served overseas and where the claim form has been issued in order to interrupt a potential time bar, steps should be taken as soon after issue of the claim form as possible to ensure that service can be effected in a timely manner. As can be seen from this and other recent cases, the courts are becoming increasingly strict in their interpretation of the CPR and simply waiting for further evidence or engaging in negotiations is unlikely to be deemed good reason to allow an extension of time for service out of the jurisdiction.

Best practice would, it seems, be to take steps to effect service of a claim form soon after issue and continue any negotiations whilst the process is underway. The parties can always seek a stay of proceedings once service has taken place.