IT IS NEVER TOO LATE IN THE YEAR FOR A NEW CLAIM FORM CASE: COURT OF APPEAL OVERTURN ORDER EXTENDING TIME FOR SERVICE

In Secretary of State for Levelling Up, Housing and Communities v Rogers [2024] EWCA Civ 1554 the Court of Appeal overturned a decision that granted a claimant an extension of time for service of the claim form.  The case is warning lesson to claimants that it is their duty to tell the court of important time limits and “energetically” chase the court if there is delay.

“It is a sad but unavoidable fact of life that court offices do not always act promptly or get things right on their own. They are staffed by civil servants, not judges, and there are rarely lawyers involved. The staff will not necessarily know what time limits apply to which claims. They will need help from the claimant’s solicitors to know which documents are a priority and why. On occasion, they will need to be energetically chased (to borrow Eyre J’s phrase). They can only be chased by a claimant or their representatives: the defendant is probably unaware of the claim. If a claimant does not set out clearly to the court office at the outset what the time limits are, and then compounds that error by failing to react to the inactivity of the court office by energetically chasing the issue of the claim form, they are almost certainly not taking all reasonable steps to serve the claim form in the six week period. In the present case, the respondent took no steps at all to comply with the relevant service rule, other than filing the documents in good time on 18 April and sending the bland email of 2 May. On any view, that was not nearly enough.”

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THE CASE

The claimant sought permission to seek a statutory review against a planning decision. The time limit for  issue and service of these reviews is six weeks.  The claimant lodged proceedings but these were not issued within the six week period.  The claimant’s solicitors  chased the court  continuously.  The court issued outside the six week limit and the claimant then served immediately.

THE JUDGMENT AT FIRST INSTANCE EXTENDING TIME

Karen Ridge, sitting as a High Court judge,  considered the claimant’s application to extend time and held that the facts were unusual. The delay was due to the court and time for service should be extended.  The judgment was considered here.

THE DEFENDANT’S SUCCESSFUL APPEAL TO THE COURT OF APPEAL

The Secretary of State appealed to the Court of Appeal. That appeal was successful. The Court held that the judge at first instance had failed to apply the correct test. It was the claimant’s duty to ensure that the claim form was issued and served within the relevant period.  There was much that the claimant could have done (but did not do) to inform the court of the need for urgency and to make an application for an extension of time.

THE COURT OF APPEAL JUDGMENT

The Court of Appeal overturned the decision extending time.  Applying the correct principles the claimant had not taken all reasonable steps to serve the claim form in the six week period allowed. Further the application to extend time had not been made promptly.

1. 1. In my judgment, the relevant principles discernible from Good Law, and the subsequent authorities to which I have referred, can be distilled as follows:

(a) The approach in Good Law sets out the principles applicable to extending time for service of judicial review claim forms. To the extent that it makes any difference, it has superseded the approach in Corus (see in particular Halton BC and Home Farm). Amongst other things, that means that neither what might be called the Denton principles, nor the merits of the underlying case, are relevant.

(b) There is a six week period for the service of a claim for a planning statutory review under s.288. That period is “precise, unambiguous and unqualified”: see Croke at [31]. The approach in Good Law therefore governs any application to extend that six week period (see, for example, Telford, Home Farm, Merrills, and Farnham TC).

(c) Following Good Law, CPR 7.6 applies to such applications, albeit by analogy. The most obvious area where r.7.6 is not a complete ‘fit’ reflects the point that I have made at paragraph 36 above in respect of the Walton case: when considering the application of r.7.6 in a statutory planning review case, the court needs to be aware of – and, if appropriate, to make some allowance for – the fact that the time for service expires automatically, which may be before the claim form has been issued by the court.

(d) Under CPR 7.6(3) a claimant has to show, first, that it has taken all reasonable steps to serve the claim form within the relevant period. Where, as here, that period started to run before the claim form had been issued, the court must consider all the steps taken up to the expiry of that period. Events after the expiry of the period are strictly irrelevant to the issue of whether a claimant took all reasonable steps to serve within the period: see Smith LJ in Carnegie v Drury [2007] EWCA Civ 497 at [36], and [60] of the judgment of Eyre J in Telford). However later events may shed light on what happened or did not happen during the six week period, and could be relevant to the overall exercise of the court’s discretion.

(d) The second step under r.7.6(3) is for a claimant to show that an application for an extension of time made after the expiry of the relevant period has been made promptly. For a case like this, where the expiry of the period in which to serve the claim form is automatic and unconnected with the issue of any documents by the court, the period under consideration starts with the date that the six week period expires, and runs to the making of the application for an extension of time.

THE CLAIMANT HAD NOT TAKEN ALL REASONABLE STEPS TO SERVE THE CLAIM FORM WITHIN THE RELEVANT PERIOD

1. 1. Amongst other things, taking all reasonable steps seems to me to require:

(a) Alerting the court at the outset to when the documents must be issued and why, explaining the expiry of any relevant deadline (a point expressly made in both Telford and Merrills);

(b) Chasing by email and telephone if there had been no sign of the documents after two or three working days;

(c) As any deadline loomed, reiterating clearly, by personal attendance (if possible) at the court office, telephone or email, when precisely the relevant time period for service expired and the consequences of failure to issue in time.

1. 1. In the present case, the respondent’s solicitors did not do any of these things. When they filed the documents electronically on 18 April, they did not indicate that the documents needed to be served by 4 May. That was, with respect, a basic error, particularly as the deadline for the s.289 appeal was due to expire on 20 April. It does not matter how early the documents are filed: a solicitor who fails to notify the court of the particular urgency of the case and the need for service by a particular date runs the obvious risk that he has not taken all reasonable steps to effect service in time.

1. 1. In my view, not only did the respondent’s solicitors fail to flag up the respective deadlines, but they exacerbated the problem by not making clear which documents related to which application. That there was confusion cannot be doubted: see paragraphs 7-12 above. It has resulted in a Part 8 claim form with the wrong action number and a reference on its face to the wrong claim. I do not criticise the respondent’s solicitors for the decision to use a single statement of facts and grounds to cover both the appeal and the statutory planning review, but I consider that the claim form was positively misleading. A simple, one paragraph explanation as to which document related to which claim should also have been provided in the email of 18 April.

1. 1. Moving forward, the respondent’s solicitors then failed to chase the court office from 20 or 21 April onwards. They allowed the s.289 deadline to expire without taking any action at all. A telephone call at that time with the court office would also have given them the opportunity to endeavour to sort out the confusion caused by the overlap between the s.288 and the s.289 applications.

1. 1. Even if we assume that Mr Rudd was right to say that the early filing of the s.288 review documents was, at the very least, a very good start in demonstrating that the respondent had taken all reasonable steps to serve the claim form in time, this was always a fluid situation. Whatever expectation or reliance the respondent’s solicitors may have placed upon the court office at the time of filing on 18 April, they must have realised by 2 May at the latest that those expectations had not been fulfilled. By that date they were, for all practical purposes, in the same position as those claimants in the cases summarised in Appendix 1, who had chosen to file their documents very close to the expiry of the relevant deadline.

1. 1. On that basis, therefore, it might be said that the most significant failure occurred on 2 May 2023. The respondent’s solicitors needed to have the sealed claim form issued that day, in order to be sure that they could serve it by 4 May. They had the claim form very much in mind because they emailed the court office about it that day. But the email of 2 May made no reference to the deadline at all, and instead simply asked that the court acknowledge receipt of the original application (which suffered from the same defects).

1. 1. Although any events after the expiry of the deadline are not strictly relevant to the ‘all reasonable steps’ test at r.7.6(3)(b), I am bound to note that, on a proper analysis, those events only serve to weaken the respondent’s position even further. For example, the respondent’s solicitors not only allowed the 4 May deadline to expire without further contacting the court office, but they waited a full week after the expiry until contacting the court again. Moreover, when they rang the court office on 11 May, it was simply to say that they were “waiting to hear it [the claim form] was being processed”. The attendance note does not suggest that the deadline of 4 May was even raised during that call. Both the delay to 11 May, and the content of the attendance note, strongly suggest that the solicitors had failed to realise the importance of the need to serve the claim form within the six week period. That impression is confirmed by the later exchanges to which I have referred at paragraphs 7-12 above. That can only underline the failure to take all reasonable steps to ensure service within the six week period.

1. 1. It is a sad but unavoidable fact of life that court offices do not always act promptly or get things right on their own. They are staffed by civil servants, not judges, and there are rarely lawyers involved. The staff will not necessarily know what time limits apply to which claims. They will need help from the claimant’s solicitors to know which documents are a priority and why. On occasion, they will need to be energetically chased (to borrow Eyre J’s phrase). They can only be chased by a claimant or their representatives: the defendant is probably unaware of the claim. If a claimant does not set out clearly to the court office at the outset what the time limits are, and then compounds that error by failing to react to the inactivity of the court office by energetically chasing the issue of the claim form, they are almost certainly not taking all reasonable steps to serve the claim form in the six week period. In the present case, the respondent took no steps at all to comply with the relevant service rule, other than filing the documents in good time on 18 April and sending the bland email of 2 May. On any view, that was not nearly enough.

1. 1. I consider that, in sharp contrast to her judgment in the Merrills case, the judge failed here to address the requirements of r.7.6(3)(b), to which she made no express reference. She allowed her (unsurprising) sympathy for the respondent, and the failure of the court office, to obscure the relevant test. She compounded that error by relying almost exclusively on the events after 4 May 2023. And whilst what matters most are the steps, if any, taken prior to the expiry of the relevant service deadline, I consider that, on a proper analysis, the events thereafter further weaken the respondent’s case. Until the appellant took the delay point on 4 July, no reference was made by the respondent’s solicitors about the potential consequences of missing the relevant deadline.

1. Accordingly, whilst I too have sympathy for the respondent’s position, I consider that, on a proper application of the relevant principles, the respondent failed to take all reasonable steps to serve within the six week time limit. For these reasons, therefore, I conclude that the respondent has failed to satisfy the test in r.7.6(3)(b). In those circumstances, if my Lords agree, that would be sufficient to allow the appeal. However I go on to deal with the second hurdle under r.7.6(3)(c), namely whether or not the respondent acted promptly in applying to extend time, because, in my view, the respondent’s difficulties on that aspect of the appeal are even more stark.

THE CLAIMANT HAD NOT MADE THE APPLICATION “PROMPTLY”

Issue 2: Was The Application Made Promptly?

1. 1. In my view, there can be no doubt that the respondent’s application to extend time was not made promptly.

1. 1. As r.7.6(2) makes clear, the general rule is that a claimant must make its application to extend time during the relevant period, not after it has expired. Accordingly, in the present case, it might be said that the respondent should have made an application to extend time no later than 2 or 3 May 2023, when it became apparent that service was not going to be effected by the deadline the following day. Once the deadline had expired, whilst an application could still be made under r.7.6(3), the court would have wanted to know why the application had not been made in accordance with the general rule. In the present case, there is no satisfactory explanation for that omission. I deal below with the making of an application in the absence of a sealed and issued claim form.

1. 1. Turning to r.7.6(3), and the consideration of whether the respondent acted ‘promptly’, there is a straightforward analysis. Parliament has decided on a tight timetable for planning statutory reviews. That explains why a claim form has to be served within six weeks. But in the present case, the period between the expiry of that six week deadline and the date when the respondent made the application to extend time was one of ten weeks, from 4 May to 13 July 2023. In this way, the period which was allowed to elapse before an extension of time was even sought was nearly twice as long as the period in which Parliament has said that the claim form must be served. On that basis alone, it seems to me that it cannot be said that the application to extend time was made promptly.

1. 1. Again, there is no explanation as to why the application was not made for so long. In my view, even assuming that it was justified to allow the deadline of 4 May to expire without an application, there was no reason why the application could not have been made on 5 May or shortly thereafter. This was a straightforward case, where every day after the expiry of the relevant deadline in which an application was not made would automatically decrease the prospect of the respondent persuading a court that he had acted promptly.

1. 1. The judge did not address this issue, save for the last sentence of [13], where she said, in respect of the delay in making the application, that “given the focus on obtaining a sealed form and the assurances given, this is unsurprising.” The suggestion appears to be that the respondent’s representatives were entitled to focus on their dealings with the court office rather than issuing the application to extend time.

1. 1. I consider that reasoning to be flawed. It assumes that the respondent’s representatives had a binary choice, of either chasing the court office or making the application to extend time for service, and that they were entitled to do the former, and let the application wait until after the claim form had finally been sealed and issued. But that is wrong, as Mr Rudd fairly accepted during oral submissions. Of course they had to continue to chase the court office but, once the deadline expired on 4 May, they always needed to apply for an extension of time as well. The court office had failed to act as it should have done: the only proper response was to issue an application to extend time either before the period expired or immediately after it had expired. That would have at least alerted the appellant to the fact of the claim. In fact, the appellant was not to find out about the existence of a claim for another 5 weeks. That seems to me to be precisely what r.7.6(3)(c) was designed to avoid.

1. 1. Mr Rudd’s argument really relied on the fact that the application to extend time was made just two days after the sealed claim form had finally been issued. But as discussed during the hearing, there is no necessary or automatic link between those two events. Contrary to a suggestion in the papers, it is not necessary to wait to make an application for an extension of time until you know precisely how long an extension you require. It is not uncommon for a claimant to apply for a prospective extension, seeking to serve, say, four working days after receipt of the sealed claim form from the court office.

1. 1. Nor is it necessary to wait for the claim form to be issued before an application to extend time is made: it is quite possible for an extension to be sought even if there is no claim form. A claim number will be provided by the court office on the making of an application for an extension (and the making of such an application might itself act as a spur to the court office to issue the claim form). In any event, there is no evidence that in some way the respondent’s solicitors in the present case waited to make the application to extend time because there was, for example, no claim number^[3].

1. 1. The appellant is also right to say that the judge did not take into account the potential accrual to the appellant of a limitation defence. However, I am not persuaded that this was as significant a point as Mr Fry submitted. There are two reasons for that.

1. 1. First, any application made under 7.6(3) in these particular circumstances pre-supposes that a claim form will have been served out of time, and that a limitation defence will therefore have accrued. That accrual may be a factor to be taken into account, although in Good Law the discussion concerning limitation at [71] and [84] is limited to a consideration of r.6.15, which does not arise here. So whilst in Home Farm at [55], Lang J repeats the point about “palpable prejudice”, she does not explain that the reference comes from a discussion in Good Law that is unconnected to r.7.6. Nor does she consider the relevance of a limitation defence to the test of promptness, in circumstances where the period for service is running automatically. In my view, in the circumstances that arise in a case where an extension of time for service is required, the accrual of a limitation defence may be a relevant consideration. But it can never be a trump card; otherwise, no extension of time under r.7.6(3) in this sort of case – where the deadline for service expires automatically, regardless of issue of the claim form – would ever be granted.

1. 1. Secondly, on the particular facts of the present case, I would be very reluctant to give the point very much weight. On one view, put at its highest, it might be said that the potential limitation defence has only accrued to one Department of State (the appellant) because of the incompetence of another Department of State (the Ministry of Justice, responsible for the court office). In my judgment, assuming that all other factors were in the respondent’s favour and that he had acted promptly, the accrual of a limitation defence in these circumstances would not be a satisfactory reason for refusing the extension of time.

1. 1. However, on the facts here, the accrual of a limitation defence argument is an irrelevant consideration. That is because, on a proper application of r.7.6(3)(c), it is plain that the respondent failed to act promptly in making the application. The respondent has therefore failed to clear the second hurdle under r.7.6(3)(c).

1. Finally, I reject Mr Rudd’s submission that it would be artificial to ignore the merits of the claim (where the judge thought the first ground of the review was arguable) or that a failure to extend time would be contrary to the overriding objective (because the underlying claim was concerned with people’s homes). The application of the approach in Good Law and r.7.6 to the unqualified and automatic six week period leaves no room for consideration of either factor.

CONCLUSIONS

1. 1. As Mr Rudd pointed out, all the recent reported cases on this issue involved something which was missing here, namely a last-minute rush to file the documents at court. And yet in all those cases, service took place much closer to the expiry of the deadline than happened here, and in four of the six cases, the delay in making the application to extend time was considerably shorter than the delay here. The overall delays here were significant and, in many respects, longer than in the cases summarised in Appendix 1. In each of those cases, the extensions were refused. So too, in my view, should the extension be refused here. Whilst the delays by the court office were one factor, they do not get the claimant across either, let alone both, of the hurdles posed by r.7.6(3).

1. For the reasons that I have given, the respondent has failed to demonstrate either that he took all reasonable steps to serve the claim form within the six weeks, or that he acted promptly in making the application for an extension of time. The judge failed to address either of those points head-on and therefore failed to consider all the relevant factors. In those circumstances, if my Lords agree, I would allow this appeal and rule that the court had no jurisdiction to consider the planning statutory review under s.288.