Arnold Holdings Limited v Keelys LLP [2025] EWCC 44

[2025] EWCC 44Case No K01BM233/Appeal ref BM40027A
IN THE COUNTY COURT AT BIRMINGHAM
Date 29 July 2025
Appeal of the Order of District Judge Mansfield dated 24 January 2024
Before
Her Honour Judge Saira Singh
Between
Arnold Holdings LimitedClaimant/Keelys LLPDefendant/
Mr Ali Tabari, counsel for Claimant/AppellantMs Pippa Manby, counsel for Defendant/RespondentHearing Hearing date: 23 May 2025
APPROVED JUDGMENTThis judgment was handed down remotely at 10.30am on 29 July 2025 by circulation to the parties or their representatives by email
[1]This appeal concerns the question whether the Appellant, Arnold Holdings Limited, took all reasonable steps to serve a claim form for the purposes of an application for a retrospective extension of time for service under CPR 7.6(3)(b). As is commonly the case with such applications, the claim was brought towards the very end of the limitation period, in this case the day before it expired. Again, as is often the case, the failure to serve the claim form in time ultimately led to the loss of the right to bring the claim. Unfortunately, although the claim was issued by the court, no sealed copy was provided. As at the date of this appeal, 22 months after the claim was issued, the court had still not provided a sealed copy of the claim form.[2]In this judgment, for convenience I will refer to the Appellant as “the Claimant” and the Respondent, Keelys LLP, as “the Defendant”.[3]The Claimant appeals the Order of District Judge Mansfield dated 24 January 2024. By that order, the District Judge dismissed the Claimant’s application for a retrospective extension of time for service of the claim form on the Defendant under CPR 7.6(3)(b). She found that the Claimant had not taken all reasonable steps to serve the claim form. She also dismissed its application for an order dispensing with service pursuant to CPR 6.16. The District Judge granted the Defendant’s application challenging jurisdiction under CPR 11.1 and set aside the claim form. The Claimant was ordered to pay the Defendant’s costs of the claim, summarily assessed on the standard basis in sum of £10,000 by 4pm on 14 February 2024.[4]The Claimant filed an appellant’s notice on 13 February 2024. It sought permission to appeal the decision in respect of both CPR 7.6(3)(b) and CPR 6.16. HHJ Truman granted permission to appeal on the papers on 14 March 2025. Shortly before the appeal hearing, the Claimant dropped the appeal in respect of the dismissal of the CPR 6.16 application, so the appeal is only pursued in respect of the CPR 7.6(3) application.[5]The Defendant filed a respondent’s notice and seeks for the decision below to be upheld for the additional reason that the Claimant not only failed to take all reasonable steps to serve the claim form in terms of engagement with others (as the District Judge found), but also failed to take all reasonable steps to obtain a sealed copy of the claim form from the court.[6]There was before the court an Appeal bundle which included the evidence and skeleton arguments that were before the District Judge, and transcripts of the hearing and the judgment. I was also referred to a number of authorities which were contained in the joint authorities bundle. In addition, I had the benefit of skeleton arguments of Mr Tabari (who did not appear below), and Ms Manby (who appeared for the Defendant below), as well as comprehensive oral submissions from them. I am grateful to them both for their assistance.[7]I am not going to repeat all the submissions, documents, evidence and authorities to which I was referred, but I have taken them all into account when reaching my decision on this appeal.

Background and chronology

[8]The underlying claim is a claim in professional negligence against the Defendant, arising out of advice they gave the Claimant in relation to a commercial property transaction in or around 2017. Contracts were exchanged for the acquisition by the Claimant of the property, a former leisure centre, from North Warwickshire Borough Council on 22 June 2017 and the purchase was completed on 22 August 2017. The value of the professional negligence claim was put at £572,500, largely made up of loss of profit.[9]A letter of claim was sent to the Defendant on 6 April 2023 and an attempt was made to enter into a standstill agreement, which the Defendant declined to do.[10]The evidence of Melonie Smith, solicitor in the firm of Smith & Wells, solicitors to the Claimant, was that on 20 June 2023, the day before the limitation period was due to expire, her colleague, Miss Bhiki, attended Birmingham County Court in person to have the claim form issued. This was done on a protective basis given the impending expiry of the limitation period. By ensuring that the claim form was delivered to court, the Claimant was able to take advantage of PD7A paragraph 1, so that the proceedings were brought that day, for the purposes of the Limitation Act 1980, even if they were not issued until a later date.[11]Smith & Wells’ covering letter to the court stated:
“We act on behalf of the Claimant and enclose Claim Form. This Claim Form is a protective Writ and we would be grateful if the same could be sent back to this firm for service in due course.”
There was no evidence from Miss Bhiki herself, but Ms Smith said that Miss Bhiki made the court officer aware that she was handing over a claim form in triplicate, to be issued protectively, and that once sealed, the claim form must be returned to her firm for service. The court date stamped the claim form with the date of receipt, namely 20 June 2023.[12]The claim form was issued on 13 July 2023, which brought into play the four month period for service, as provided by CPR 7.5(1). Therefore, the Claimant had until midnight on 13 November 2023 to serve the claim form.[13]It was at this point that things started to go wrong. It is apparent that, rather than returning the sealed claim form to the Claimant to serve, the court office purported to serve it on the Defendant direct, because on 19 July 2023, the Defendant received a claim form by post from the court. I say “purported to serve it” because, in a further twist, it became apparent at the hearing before the District Judge that the claim form received by the Defendant from the court was a photocopy of the sealed claim form rather than an original. Having checked the court file at the hearing and found only a single sealed claim form, the District Judge surmised (without, in my view, making a concluded finding) that perhaps the Claimant had only provided the court with one claim form, instead of the requisite three.[14]On 20 July 2023, Smith & Wells received notice of issue from the court, which stated that the claim was issued on 13 July 2023 and that the court had sent the claim form to the Defendant by first class post on 14 July 2023 so it would be deemed served on 18 July 2023. That was of course contrary to the Claimant’s instructions.[15]On the same day, someone at Smith & Wells (presumably Miss Bhiki) telephoned the court to flag the error. The court staff told her to send an urgent email, which Miss Bhiki did that day. In the email, Miss Bhiki pointed out the error and requested a copy of the sealed claim form to enable her to “take appropriate steps to seek to redress court’s administrative error”.[16]On 24 July 2023, Smith & Wells wrote to the Defendant explaining the error and inviting the Defendant to treat the claim form as not having been served and confirm the four-month window for service was still live.[17]On 2 August 2023, the Defendant responded and acceded to that request.[18]Ms Smith referred at paragraph 12 of her witness statement to further contact with the court in an attempt to obtain a sealed copy of the claim form, namely “several chaser calls (on one occasion being on hold for 2 hours) and a personal attendance at the Court’s office on 4th October 2023”. However, despite those efforts, they were still without a sealed claim form.[19]There is then an attendance note of an attendance at the court office on 4 October 2023. Miss Bhiki, who had been at court on another matter, records that the court officer told her that the file would have to be taken out and a copy of the sealed claim form would be coming out. There is no reference in the attendance note to any mention being made to the court officer of the last date for serving the claim form approaching on 13 November 2023.[20]The next event in the chronology is that on 17 October 2023, Smith & Wells wrote to the Defendant stating “Further in this matter, we enclose by way of service on you our client’s claim form and particulars of claim. Kindly acknowledge receipt.” The enclosed claim form was date stamped 20 June 2023 (the date it was delivered to court) but was unsealed, had no claim number in the heading and did not indicate the issue date. The covering letter did not draw attention to any of those deficiencies.[21]On 30 October 2023, the Defendant filed and served an acknowledgement of service, indicating its intention to challenge jurisdiction.[22]The time for service of the claim form expired at midnight on 13 November 2023.[23]On 14 November 2023, the Defendant made its application challenging jurisdiction under CPR 11.1, supported by the witness statement of Matthew Wilson, solicitor at Mills & Reeve, the Defendant’s solicitors.[24]This was followed on 15 November 2023 by the Claimant’s application for a retrospective extension of time for service of the claim form under CPR 7.6(3) or an order dispensing with service under CPR 6.16, supported by the witness statement of Melonie Smith.[25]On 17 November 2023, Mills & Reeve sent Smith & Wells the “original” claim form as received by the Defendant in July 2023.[26]On 24 January 2025, both applications came before the District Judge.

The District Judge’s judgment

[27]The hearing before the District Judge was listed for three hours starting at midday, with 30 minutes pre-reading time. In the event, it came on at 12.19pm, according to the hearing transcript. The District Judge had only received counsel’s skeleton arguments at midday, but she said that she had had an opportunity to read them, as well as the bundle and the authorities, before the hearing. She heard submissions after lunch and then, after a short adjournment, gave a reasoned ex tempore judgment. The judgment runs to 61 paragraphs. Paragraphs 1 to 53 deal with the substance of the applications and paragraphs 54 to 61 deal with costs.[28]At paragraphs 3 to 19, the District Judge gave a very full factual background and chronology. She considered the application to extend time under CPR 7.6(3) at paragraphs 26 to 45. At paragraphs 30-31, she indicated that she did not accept, on the facts of this case, the submission that a claimant who has paid a £10,000 issue fee ought to be able to rely on assurances given by the court that a sealed claim form would be sent out in the post. She noted, at paragraph 33, that the Claimant already knew that its interaction with the court had not proved fruitful, as she put it. At paragraph 35, she noted that, as of 2 August 2023, as far as the Claimant was concerned the Defendant had a sealed claim form.[29]The District Judge then considered what would amount to reasonable steps in the circumstances of this case, including: asking the Defendant before the expiration of the four month period for a copy of the sealed claim form which the court had served upon it; or making an application for a stay of proceedings due to the court’s failure to provide a sealed claim form or for an in-time application to extend time for service to 14 days after provision by the court of a sealed copy of the claim form.[30]The District Judge concluded at paragraph 42 that “I am not satisfied in the circumstances that all reasonable steps have been taken. It is not reasonable to rely upon communicating with the court office and that is being entirely neutral as to whether I think the number of communications that [sic] the court were sufficient in all the circumstances.”[31]At paragraphs 43 and 44, she continued that, even if she were wrong about that, she would not have exercised her discretion to extend time, because both of these parties were more than alive to limitation.[32]At paragraph 45, the District Judge said that she accepted the points set out by Ms Manby in her skeleton argument in respect of this. She observed that the prejudice to the Defendant would be considerable and that, as set out in Ms Manby’s skeleton, the Claimant had a cause of action as against the current solicitors, so it was not without recourse.

Grounds of appeal

[33]There are two grounds of appeal raised by the Claimant.[34]First, the judge was wrong to find that the Claimant had not taken all reasonable steps to serve the claim form in time. It is said that the District Judge failed to take proper account of the uncontroverted evidence of the Claimant’s solicitor of the efforts made to obtain a sealed copy of the claim form.[35]Second, that the District Judge was unreasonable in the exercise of her discretion, in that she was wrong to find that that the loss of a limitation defence by the Defendant was sufficiently prejudicial to defeat the Claimant’s application. It is said that she failed to take into account, or give sufficient weight to, the relative prejudice caused to the Claimant in refusing the application and that the failure to serve the claim form in time resulted from the court’s failure to provide a sealed claim form.[36]The reasons given by HHJ Truman for granting permission to appeal were that, while the judge’s decision involves the exercise of her discretion, the background circumstances were such that it may be arguable that insufficient account was taken of the effect of the failures in the service provided by the court’s administration.

Applicable legal principles on appeal

[37]Under CPR 52.21(1), an appeal is by way of a review of the lower court’s decision, rather than a rehearing, unless a practice direction makes different provision or the court considers that a re-hearing would be in the interests of justice. There was no suggestion in this case that the appeal should proceed other than by way of a review of the District Judge’s decision.[38]CPR 52.21(3) provides that the appeal court will allow an appeal where the decision of the lower court was(a) wrong or(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. The present appeal engages only CPR 52.21(3)(a), there being no suggestion that there was a procedural or other irregularity.[39]For the purposes of CPR 52.21(3)(a), “wrong” means that the court below(i) erred in law or(ii) erred in fact or(iii) erred (to the appropriate extent) in the exercise of its discretion (White Book, paragraph 52.21.5).[40]Where the application of a legal standard such as negligence or obviousness involves no question of principle, but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation (Lifestyle Equities CV v Amazon UK Services Ltd [2024] UKSC 8 at paragraph 47).[41]On a challenge to an evaluative decision of a first instance judge, the appeal court does not carry out a fresh balancing exercise, but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the judge’s treatment of the question to be decided, such as a gap in logic, lack of consistency or failure to take into account material factors, which undermines the cogency of the conclusion (Lifestyle Equities at paragraph 49, approving what was said in In re Sprintroom Ltd [2019] EWCA Civ 932 at paragraph 76).[42]An appeal court will be reluctant to interfere with a decision where the first instance judge has assessed and balanced a large number of factors, for example in determining whether an action constitutes an abuse of process. It will generally only interfere if the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a decision that was impermissible or not open to them (Aldi Stores Ltd v WSP Group plc [2007] EWCA Civ 1260 at paragraph 16).[43]Where an appeal is brought against the exercise of a discretion, the appeal court should only interfere where it considers that the first instance judge has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the appeal court would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible (Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311). Legal framework for applications to extend time for service of claim form: CPR 7.5 and CPR 7.6[44]Under CPR 7.5(1), the general rule is that once a claim form has been issued, if it is to be served on a defendant within the jurisdiction, it must be served within four months after the date of issue.[45]The reasons why there are special rules relating to service of claim forms were set out in of the judgment of Lord Sumption in Barton v Wright Hassell [2018] UKSC 12, in the context of an application for retrospective approval of alternative service of a claim form. At paragraph 16, he said:
“Although the purpose of service is to bring the contents of the claim form to the attention of the Defendant, the manner in which this is done is also important. Rules of Court must identify some formal step which can be treated as making him aware of it. This is because a bright line rule is necessary in order to determine the exact point from which time runs for the taking of further steps or the entry of judgment in default of them. Service of the claim form within its period of validity may have significant implications for the operation of any relevant limitation period, as they do in this case. Time stops running for limitation purposes when the claim form is issued. The period of validity of the claim form is therefore equivalent to an extension of the limitation period before the proceedings can effectively begin. It is important that there should be a finite limit on that extension. … For these reasons it has never been enough that the Defendant should be aware of the contents of an originating document such as a claim form. Otherwise any unauthorised mode of service would be acceptable, notwithstanding that it fulfils none of the other purposes of serving originating process.”
[46]What must be served is an original sealed claim form, not a photocopy of one. That is the combined effect of CPR 7.2(1), 2.6(1) and 6.3(1) (Hills Contractors and Construction Ltd v Struth [2013] EWHC 1693 (TCC), approved by the Court of Appeal in Ideal Shopping Direct Limited and other v Mastercard Incorporated and others [2022] EWCA Civ 14).[47]Under CPR 7.6(1), a claimant may apply to the court to extend the time for serving the claim form. There are two types of application: a prospective, or in time, application under CPR 7.6(2) and a retrospective application under CPR 7.6(3).[48]CPR 7.6(2) makes clear that the general rule is that any application for an extension of time must be made within the time specified by CPR 7.5 or, if an extension has already been granted, within the period specified by the order. The court’s power to extend time under CPR 7.6(2) is a discretionary one which is unfettered by any particular test within the rule itself. However, the Court of Appeal in ST v BAI [2022] EWCA Civ 1037 noted that the reason for the inability to serve in time will be a “highly material factor” and suggested that the better the reason, the more likely it is that an extension will be granted, and that if there is no good reason for an extension, the court still retains a discretion to extend time but is unlikely to do so.[49]As one might expect, a retrospective application under CPR 7.6(3) is more prescriptive and more difficult. In Hashtroodi v Hancock [2004] EWCA Civ 652 at [17] it was noted that there was a “striking” contrast between the two regimes.[50]CPR 7.6(3) provides as follows: “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 reasonablesteps 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.” (My emphasis.)[51]In the present case, CPR 7.6(3)(b) was engaged.[52]There was some discussion at the appeal hearing as to the nature of the court’s task on an application under CPR 7.6(3) and, therefore, the nature of an appeal against a first instance judge’s decision on such an application. In my judgment, an application under CPR 7.6(3)(b) involves a three-stage exercise.[53]First, the court must consider whether it has jurisdiction to make an order at all under CPR 7.6(3)(b). That requires determination of whether or not the claimant has taken “all reasonable steps” to serve the claim form in time. That is clear from the words “only if” in CPR 7.6(3). In my judgment, there will be a “yes” or “no” answer to that question, which the court will arrive at after carrying out an evaluation of the facts (including the prevailing circumstances, what was done by the claimant and what could reasonably have been done in the circumstances).[54]In my view, that is akin to the sort of exercise envisaged by the Court of Appeal in Aldi at paragraph 16. Although Aldi was concerned with the question whether or not there was an abuse of process, in my judgment, an evaluation of whether all reasonable steps have been taken to serve the claim form can only result in one correct answer. It does not involve the exercise of a discretion.[55]If a judge concludes that “all reasonable steps” have not been taken, they will have no power to grant an extension under CPR 7.6(3)(b) and the application must be dismissed. However, if they conclude that “all reasonable steps” have been taken, they must then move to the second stage, which is to decide whether the application has been made promptly, as required by CPR 7.6(3)(c). In this case, the promptness of the Claimant’s application is not in dispute.[56]If the judge is satisfied that the application was made promptly, the third stage is the exercise of their discretion whether or not to grant an extension of time. The existence of a discretion can be discerned from the use of the words “the court may make an order”.

Did the Claimant take “all reasonable steps” to serve the claim form in time?

[57]Whether the claimant has taken “all reasonable steps” to serve the claim form in time must be assessed on the basis of the particular facts of the case. In this case, the question must be considered in the context of the following facts: i) The Claimant’s claim was “brought”, for the purposes of the Limitation Act 1980, on 20 June 2023, the day before the limitation period expired. ii) Its solicitors, Smith & Wells, had informed the court that the claim form was being issued on a protective basis and requested the court, in writing and in person upon presentation of the claim form, to send it to them for service. iii) The claim form was issued by the court on 13 July 2023 so the time for serving the claim form expired at midnight on 13 November 2023. iv) Contrary to Smith & Wells’ instructions, the court purported to serve the claim form on the Defendant instead of sending the Claimant a sealed copy for service. v) The Claimant discovered this on 20 July 2023 when its solicitors received notice of issue. vi) Ms Bhiki of Smith & Wells telephoned the court the same day and followed up with an email, requesting that a sealed copy of the claim form be sent to the firm. vii) Smith & Wells wrote to the Defendant on 24 July 2023 and asked them, if they had been served, to treat the claim form as not having been served. viii) The Defendant acceded to this request in their letter of 2 August 2023.[58]Accordingly, as at 2 August 2023, the Claimant was aware that(a) the claim form was deemed not served;(b) it did not have a sealed copy of the claim form to serve;(c) as far as it was concerned, the Defendant had a sealed copy of the claim form; and(d) the time for serving the claim form expired at midnight on 13 November 2023.[59]The steps that the Claimant took in order to attempt service were as follows: i) Smith & Wells made “several” chaser telephone calls to court, on unspecified dates, including one where they were on hold for 2 hours. ii) On 4 October 2023 (approximately 5 weeks before the expiry of the time for serving the claim form), Ms Bhiki attended at court in person and, upon requesting a sealed copy of the claim form, was told that the file had to be retrieved and a copy would be sent out.[60]As we know, that never happened and on 17 October 2023, Smith & Wells purported to serve an unsealed, undated claim form on the Defendant. The covering letter made no reference to those deficiencies in the claim form. On 30 October 2023, the Defendant’s acknowledgement of service was filed, indicating an intention to challenge the court’s jurisdiction. I agree with the District Judge that that ought to have flagged to the Claimant and its solicitors, if they did not already know, that there was likely an issue with the service of the claim form.[61]It was not until 17 November 2023, after the Defendant had made their application under CPR Part 11, that the Claimant made its own application to extend time.[62]Insofar as Mr Tabari submitted that the approach taken in ST v BAI and Playfair v Pannells LLP and others [2024] EWHC 1933 (Ch) is relevant here, I note that both of those cases concerned in-time applications under CPR 7.6(2). Both authorities confirm that such applications require consideration of whether the claimant acted reasonably and whether they had a good reason for the inability to serve. By contrast, the threshold test under CPR 7.6(3)(b) is whether the claimant has taken “all reasonable steps” seen against the backdrop of the particular circumstances.[63]At the hearing below, the District Judge disagreed with the submission of Mr Marriott, counsel for the Claimant, that the claimant was entitled to rely upon the oral assurance given at the court counter on 4 October 2023 that a sealed copy of the claim form would be posted out. While agreeing that it is not a counsel of perfection, she went on to consider various steps that could reasonably have been taken but were not: i) The Claimant could have asked the Defendant for a copy of the claim form (in fact, it did not do that until after the limitation period had expired). ii) It could have applied for a stay of the claim or to dispense with service. iii) It could have made an in-time application for an extension of time. iv) Upon receipt of the acknowledgement of service, it could have contacted the Defendant to explore reaching agreement regarding service or otherwise.[64]Mr Tabari submitted that the court must look at whether or not any particular possible step would have made any difference. Here, there was no guarantee that the Defendant would have been cooperative. Similarly, it was not certain whether an application to court would have been successful, if it was even heard in time.[65]In my judgment, there is nothing in CPR 7.6(3)(b) that requires the claimant to establish that the reasonable steps that could have been taken would have been effective. The focus is on the claimant’s actions and whether it has done all that it reasonably can to effect service in time. In this regard, if it had made an application to court, I agree that it might not have been heard before 13 November 2023 or it might not have been successful. However, at least the Claimant could have pointed to those steps as having been taken. In my judgment, that is all it needed to do.[66]The Claimant took none of those steps. In fact, it took no steps at all between 4 October 2023 and 13 November 2023, other than purport to serve on the Defendant an unsealed copy of the claim form on 17 October 2023.[67]Mr Tabari submitted that the court must take into account the court’s serious failure in its administrative functions. He reminded me that permission to appeal was granted on the basis that the District Judge arguably placed too little weight on the court’s administrative failure.[68]Clearly the court office made errors here, initially by purporting to serve the claim form on the Defendant despite the Claimant’s instructions that it wished to serve, and then failing to send the Claimant a sealed copy of the claim form. However, the question at this first stage was not whether the court was at fault. Rather, it was whether the Claimant took all reasonable steps to serve the claim form within the period specified in CPR 7.5(1) in the circumstances in which it found itself (including the errors and failures by the court office).[69]It is apparent from the judgment that the court’s failures were at the forefront of the District Judge’s mind when she considered whether the Claimant took all reasonable steps. As such, in my judgment, it cannot be said that the judge placed too little weight on those failures when determining whether the jurisdictional test was met.[70]Was the District Judge wrong to conclude that the Claimant had not taken all reasonable steps, thereby closing the door to an extension of time under CPR 7.6(3)? In my judgment, she was not. I cannot see any identifiable flaw in her approach, or any gap in her logic or lack of consistency or failure to take into account material factors. It is clear from her judgment that she was aware of the relevant test in CPR 7.6(3). She properly had in mind the court’s errors in first serving (or purporting to serve, as we now know) the claim form on the Defendant and then failing to send a sealed copy of the claim form to the Claimant to serve. She took on board the communication that the Claimant’s solicitors had with the court up to and including 4 October 2023. She noted that it had not been fruitful and yet the Claimant still relied on it.[71]I do not read paragraph 42 of the judgment as saying that a party can never rely on communications with the court office. In my view, the District Judge was saying there that, in this case, it was not reasonable for the Claimant to have just relied on the communication with the court office, because that appears to be all it did do. In my view, it is difficult to disagree with that sentiment. That is all the more so, given what was at stake for the Claimant: the right to pursue what is said to be a high value professional negligence claim, which was brought right at the end of the limitation period. The authorities are clear about the jeopardy faced by claimants who “court disaster” by not bringing their claim until the very end of the limitation period and opting not to have the claim form served by the court (for example, see Barton at paragraph 23).[72]It is difficult not to have sympathy with the Claimant’s position. However, for the reasons set out above, in my judgment, the judge was entirely correct to find that the Claimant had not satisfied the jurisdictional test in CPR 7.6(3).[73]I am invited by the Defendant in the Respondent’s Notice to uphold the District Judge’s decision for the additional reason that the Claimant’s communications with the court were themselves not “all reasonable steps” which should have been pursued. Or, as it was put in Ms Manby’s skeleton argument, the Claimant did not take all reasonable steps to engage with the court.[74]Mr Tabari submitted that it would not have been in keeping with the overriding objective, including the appropriate use of court resources, for the Claimant’s solicitors to have been constantly attending on court staff. In his submission, once they were told, on 4 October 2023, that a sealed claim form was on its way, that was the point when a reasonable litigant should trust that it was indeed on its way.[75]I cannot agree with that. As already noted, this was a very substantial claim of huge importance to the Claimant. The limitation period had expired and the time for serving the claim form was about to expire. The stakes could not have been higher. Despite that, the Claimant did not engage at all with the court office after 4 October 2023. It may be that any further communication would have similarly been fruitless. Nevertheless, in my view, such communication as there was, was not sufficient, in particular because the Claimant did not take any other action either. That was perhaps implicit in the District Judge’s judgment, but in case it was not, it is open to this court to make that finding.[76]For those reasons, I would dismiss the appeal and uphold the judge’s decision that the Claimant failed to satisfy the test in CPR 7.6(3)(b) for the additional reason that the Claimant’s communications with the court were insufficient in the circumstances.

Exercise of discretion

[77]That is sufficient to dispose of the appeal. However, because I heard submissions on the issue, I shall go on to consider what I have called the third stage of the CPR 7.6(3) test, namely the exercise of discretion.[78]The District Judge set out what her decision would have been, if she had had to exercise her discretion, relatively shortly at paragraphs 44 and 45 of her judgment. I do not criticise her for the relative brevity, because this was not central to her decision, having already determined that the “all reasonable steps” test had not been met.[79]Mr Tabari submitted that the District Judge did not carry out a proper balancing exercise of the relative prejudice to the parties. He submitted that the judge placed too much weight on the loss of the Defendant’s limitation defence if an extension of time were granted, without carrying out a proper analysis of the prejudice to the Claimant and the viability of the alternatives said to be open to it. He submitted that she did not factor in that a loss of chance claim against the Claimant’s solicitors would not be straightforward and, even if successful, would not in all likelihood equate to the value of the original claim against the Defendant. Furthermore, he submitted that a loss of chance claim would likely be met with a defence of novus actus interveniens in the form of the court’s failure to provide a sealed claim form. Likewise, the option of a claim against HMCTS was illusory.[80]It was also submitted that the District Judge failed to take into account that the Claimant’s failure to serve the claim form in time arose from the court’s own administrative failure.[81]In my view, the District Judge would have been alive to all of those matters, even though she did not refer to them all in this part of her judgment. As far as limitation is concerned, it is apparent from the transcript of the hearing that, in addition to reading the evidence and submissions on behalf of the Claimant as to the prejudice it would suffer if not granted an extension of time, the judge heard full oral submissions on the issue. She had been referred to the relevant authorities and referred to some of them in her judgment and she had noted the disadvantages of a loss of chance claim against solicitors as compared with the claim against the Defendant.[82]The court’s errors had also been fully canvassed before her. In taking into account the court’s errors, she would also have had in mind the following factors: i) The Claimant had left it until the day before the limitation period expired to bring proceedings. ii) It chose to take responsibility for serving the claim form. iii) The Claimant did not communicate with the court at all after 4 October 2023. iv) There was no attempt to request a copy of the claim form from the Defendant, on whom (as far as the Claimant was aware) a sealed copy of the claim form had been served. v) No steps were taken before the claim form expired to seek an in-time extension of time.[83]Had it been necessary, I would have found that the District Judge had correctly exercised her discretion or, at the least, her decision was within the generous ambit open to her.

Conclusion

[84]A great deal of emphasis on this appeal and below was placed on the failures of the court office. Unfortunately, errors and delays do occur, whether due to under-resourcing or otherwise. In some cases, there is nothing a party can do; for example, where evidence has been properly filed in a timely manner but not placed in the court file, which only becomes apparent at the hearing. This case is different. While the court office clearly made administrative errors, the Claimant was aware of those errors from 20 July 2023 onwards. There were steps it could have taken, whether by increasing their efforts to engage with the court or by making an appropriate in-time application to the court. However, despite knowing that the limitation period had expired, the Claimant inexplicably took no steps at all after 4 October 2023. In those circumstances, it cannot be right for it to lay the blame solely at the door of the court office.[85]For all the reasons set out above, the appeal is dismissed and the decision of the District Judge upheld for the additional reason that the Claimant’s communications with the court were insufficient in the circumstances of the case.[86]I will hear submissions on any consequential matters arising and which cannot be agreed at the hearing that has been fixed for 26 August 2025.