Hills Contractors & Construction Ltd v Struth & Anor [2013] EWHC 1693 (TCC)

[2013] EWHC 1693 (TCC)Case No HT 13 10
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/06/2013
Before
Mr Justice Ramsey
Between
Hills Contractors and Construction LimitedClaimantMalcolm StruthDefendantsJustine StruthDefendant
Jane Lemon (instructed by Prettys) for ClaimantJonathan Selby (instructed by Birketts LLP) for DefendantsHearing Hearing date: 26 April 2013
Judgment

Introduction

[1]This is an application by the claimant to set aside an order dated 13 March 2013 by which Edwards-Stuart J struck out the claim on the basis that the claimant had failed to serve Particulars of Claim pursuant to CPR 7.4(1)(b).[2]The order stated that as it had been made without notice to the claimant, the claimant was entitled to apply to have the order varied or set aside pursuant to CPR 23.10.[3]On 22 March 2013 the claimant applied to have the order set aside, to have the claim reinstated and have time for service of Particulars of Claim extended to 15 May 2013. Background[4]The claimant was employed by the defendants to carry out building works at a property in Colchester under a contract entered into in 2010 in the JCT Intermediate Form of Contract.[5]In June 2012 the claimant submitted a final account in relation to the works carried out under the contract. This led to a final certificate being issued on 20 December 2012 and being delivered to the claimant’s offices immediately before the claimant’s traditional construction industry Christmas holiday. The defendants contended that there were defects in the property and the final certificate reflected those defects by not requiring the claimant to make good defects but rather having the contract sum adjusted under Clause 2.30 of the contract.[6]This led to a balance of £21,970.96 due to the defendants from the claimant under the final certificate. Under the provisions of the Intermediate Form of Contract proceedings had to be commenced within 28 days of the final certificate in order to prevent the final certificate becoming conclusive in relation to matters in issue between the parties. As a result the claimant instructed its solicitors, Prettys, who on 16 January 2013 issued the claim form in these proceedings.[7]On 18 January 2013 a telephone call took place between Mr Blake of Prettys and Mr Rush of Birketts LLP, instructed on behalf of the defendants. In his witness statement in support of this application Mr Blake says that during the call he informed Mr Rush that a claim form had been issued and asked him if his clients would agree a stay of proceedings to allow the parties time to comply with the pre-action protocol. He says this protocol had not been observed due to the haste with which the claimant was obliged to issue the claim form in order to avoid the final certificate becoming conclusive.[8]On the following Wednesday, 23 January 2013, Mr Blake sent Mr Rush a letter enclosing a copy of the issued claim form and stating:
“We write further to our telephone conversation on Friday 18 January 2013. Please find enclosed a copy of the issued Claim Form. We look forward to hearing from you with regard to the proposal to stay proceedings to allow observance of the Pre-Action Protocol.”
[9]Nothing further happened until Birketts wrote a letter dated 20 February 2013 in the following terms “We refer to your letter of 23 January 2013, enclosing a Claim Form (issued on 16 January 2013) and confirm we accept this as service of the said Claim Form. As you will be aware your client is required to serve any Particulars of Claim within 14 days of service. However, 28 days has elapsed since service of the Claim Form. Not only has your client failed to serve its Particular of Claim it has failed, to the extent it was your client's intention to formerly [sic] follow the Protocol, to take any steps towards compliance. As regards the principle of a stay for the Pre-Action Protocol, it is fair to say both parties know the position adopted by the other, as your client's position was made clear in its final account and our client's position was made clear in the Final Certificate and Certificate of Making Good Defects Certificate. We therefore see no benefit in slavishly complying with the Protocol in circumstances where the parties are fully aware of the other party's respective position. That said, the requirement/suggestion in the Protocol for the parties to attend a meeting has not yet been explored. As such we are instructed that our client requires either service of your Particulars of Claim within 14 days (6 March 2013) or for your client to put forward proposals acceptable to our client in relation to a Protocol meeting. If we receive acceptable proposals in relation to a Protocol meeting within the next 7 days, our client is content to waive its requirement in relation to service of the Particulars of Claim and agree a suitable extension to any such service. However, in the absence of any such proposals acceptable to our client we are instructed to apply for your client's claim to be struck out if the Particulars are not served within the date specified above.”[10]In response to that letter Prettys wrote to Birketts on 25 February 2013 in the following terms:
“Thank you for your faxed letter dated 20 February 2013. The claim form has not been served yet. We sent you a photocopy. Your comments with regard to protocol observance are noted. Our client is willing to meet as suggested. We will come back to you with some suggested dates during the course of this week.”
[11]It is not disputed that that letter was sent to Birketts but, for whatever reason, was not received by Birketts. Whilst that letter of 25 February 2013 suggested that there would be further communication about dates for a meeting that did not happen. Mr Blake says that, in the event, it was not possible to go back to Mr Rush with suggested dates for a meeting as Mr Witting of SCI Partnership in Ipswich, who had been instructed to review the final account in the light of the final certificate, unexpectedly fell ill and his availability became uncertain. It appears that Mr Witting’s health has not improved and the claimant has now engaged the services of Mr Witting’s business partner, Mr Andrew Cross, to provide consultancy services.[12]The next communication was from Birketts on 8 March 2013. They said they enclosed, by way of service, a copy of the application notice dated 8 March 2013 and supporting documentation relating to that application. In the witness statement from Mr Rush enclosed with the application no reference was made to Mr Blake’s letter of 25 February 2013.[13]Prettys responded to Birketts on 11 March 2013 and said:
“We will be contacting you during the course of the week with regards to the proposed meeting. The delay has been caused by illness of our client’s quantity surveyor, Mr Witting. We also enclose a copy of our letter to the court. We note that you have not exhibited our letter dated 25 February 2013, a copy of which is enclosed.”
[14]In the letter to the Court, which was also enclosed with their letter to Birketts, Prettys said as follows:
“We request that the application be dealt with at a hearing. The application is misconceived in that the claim form has not, as yet, been served. The claim form enclosed with our letter dated 23 January 2013 addressed to Birketts exhibited as AGR1 was a photocopy. The sealed copy for service remains on our file. The time for service of the particulars of claim has therefore not begun to run. This was confirmed in our letter to Birketts dated 25 February 2013, a copy of which is enclosed as it was not exhibited to Mr Rush’s statement. In the event that the application is not withdrawn we will prepare witness evidence but have refrained from doing so to date in order to save costs.”
[15]The order dated 13 March 2013 was in the form requested in the application dated 8 March 2013 but gave the claimant liberty to apply to vary or set aside the order pursuant to CPR 23.10. On that basis it appears that the court was not aware that the application had in fact been served on Prettys and there is no reference within the order to Prettys request for a hearing in their letter of 11 March 2013.[16]On 18 March 2013 Birketts sent Prettys the order dated 13 March 2013. On 19 March 2013 following a conversation between solicitors there was, it seems, a possibility of the order being varied by consent but failing that Prettys stated that they would make an application pursuant to CPR 23.10.[17]In response on 20 March 2013 Birketts stated they were not content to agree to the claimant’s application to set aside the order and on 22 March 2013 Prettys issued the present application.[18]The application of 8 March 2013 was treated as being an application without notice and therefore the order of 13 March 2013 contained the required reference to the claimant’s entitlement to apply to vary or set aside the order under CPR 23.10.[19]In fact, as can be seen, Birketts sent Prettys a copy of the application which arrived on the following Monday, 11 March 2013. Prettys then wrote a letter on 11 March 2013 to Birketts. They said they would be contacting Birketts about the proposed meeting and said delay had been caused by Mr Witting’s illness. They referred to the fact that their letter of 25 February 2013 was not exhibited. Prettys also wrote to the Court on 11 March 2013 and stated that the claim form had not been served. They enclosed a copy of the letter of 25 February 2013, they requested that the application be dealt with at a hearing and they indicated that they would wish to serve witness evidence. This letter evidently did not come to the attention of the court and the application proceeded on the basis that it had not been served and CPR 23.10 applied.[20]In fact, the claimant had been served and, although CPR PD 23A indicates at paragraph 2.4 that “Rules 23.9 and 23.10 enable a party to apply for an order made without a hearing to be set aside or varied”, it is, in fact, CPR 3.3(5) which applies in cases where the order is made without a hearing. Whilst an order may obviously be made without a hearing where the application has not been served and therefore CPR 23.9 and 23.10 would apply, where the application has been served but the court decides the matter without a hearing it does so under CPR 23.8(c).[21]As stated in CPR PD 23A at paragraph 11.2, “Where rule 23.8(c) applies the court will treat the application as if it were proposing to make an order on its own initiative.” This then leads to an order made under CPR 3.3(4) and this engages CPR 3.3(5): see note 3.3.1 to the White Book. There is, though, no practical difference between an application under CPR 23.10 and one under CPR 3.3(5).[22]I heard the application on 26 April 2013 and gave my decision allowing the application on 29 April 2013. I now set out my reasons for that decision. The Application[23]Ms. Jane Lemon, who appears on behalf of the claimant, submits that the order dated 13 March 2013 striking out the claim form should be set aside so as to reinstate the claim and the original application should be dismissed. Further or alternatively she says that the time for service of the Particulars of Claim should be extended to 15 May 2013.[24]She submits that the defendants’ original application was based on an erroneous view that the claim form had been served and consequently that the claimant had failed to serve the Particulars of Claim within 14 days in accordance with CPR7.4(1)(b). In fact she submits that only a photocopy of the claim form had been sent to Birketts for the purposes of information and therefore the Particulars of Claim were not yet due for service.[25]Alternatively she submits that if the claim form had been served, the appropriate order would not have been to strike out the claim form but would have been to grant an extension of time for service of the Particulars of Claim. She submits that, on the evidence, Mr Blake sent a photocopy of the sealed claim form to Mr Rush on 23 January 2013 and not an original of the sealed claim form because Mr Blake was sending it only for information to show that proceedings had been issued and so the final certificate had not become conclusive. She submits that the sending of a photocopy of the sealed claim form by way of the document exchange did not amount to service of the claim form. While she accepts that under CPR6.3(1)(b) the claim form may be served by way of the Document Exchange, she submits that no “claim form” was served in the present case.[26]She submits that the claim form which has to be served is the claim form which is issued by the court and not a photocopy of it. She refers to the notes at paragraph 6.3.13 of the White Book which read as follows:
“Circumstances may arise where it is practical and convenient for both claimant and defendant for the claimant, having issued a claim form, to send to the defendant a copy of it, not "by way of service", but 'for information only". Generally as it is a copy of the claim form that is sent to the defendant, and not the issued form that may in due course be served on the defendant by way of one of the methods of service permitted (other than by an electronic method), no question arises of such service being valid service, whatever the intention of the parties. In Asia Pacific (HK) Ltd v Hanjin Shipping Co Ltd [2005] EWHC 2443 (Comm) November 7, 2008, unrep. (Christopher Clarke J) the question which arose was whether service "by way of service" could be implied in circumstances where it was arguable that it was 'for information only’. The intriguing feature of this case was that the method of service adopted by the claimants had been service by fax, so the fact that the claim form received by the defendants was not a form issued by the court, but a copy of it, would not in itself affect the validity of service.”
[27]She relies on the statement that because it is a “copy of the claim form” and not “the issued form” then “no question arises of service being valid service, whatever the intention of the parties.”[28]She refers to the facts in Hanjin Shipping in which Christopher Clarke J held that service by fax of a copy of the claimant’s copy of the claim form was good service because, unlike a document sent by post or the Document Exchange, a document received by fax is always a copy document. She draws a distinction between service by hard copy and service by fax and refers to the Court of Appeal decision in Murphy v Staples UK Limited, one of several appeals under the title Cranfield v Bridgegrove [2003] 1 WLR 2441 which was referred to in the Hanjin Shipping case.[29]In Murphy the defendant’s solicitors had confirmed that they had instructions to accept service but the claimant’s solicitors nevertheless sent the claim form and other documents by first class post to the defendant’s registered office. In addition they sent a copy of all the documents to the defendant’s solicitors under cover of a letter which confirmed that the documents had been served on the defendant’s registered office.[30]The Court of Appeal decided that service on the defendant’s registered offices constituted good service but went on to consider the position if service should have been on the solicitors with the result that the claim form had not been served in time and the claimant would need an order dispensing with service under CPR 6.9. At [87] Dyson LJ giving the judgment of the court and referring to the defendant’s solicitors (Branton) and the claimant’s solicitors (Horwich) said this:
“It is clear that a copy of the claim form as issued was sent to Branton on 15 March 2002. In other words, a copy of the right document was sent to the right person at the right address and, if CPR 6.7 applied, it was deemed to have been served before the expiry of the 4 month period. Moreover, Branton were informed by Horwich that the original documents had been served on the defendant's registered office that same day. The only flaw in the process was that Horwich sent a copy of the issued claim form, rather than the original document itself. In this regard, it is to be noted that, if Horwich had sent the issued claim form to Branton by fax that would have been good service. A document received by fax is a copy document. The circumstances revealed by this case do not precisely satisfy the Anderton criteria: Branton received a document served by one of the permitted methods of service (ie by first class post on the right person at the right address), but it was a copy of the document that should have been served.”
[31]Ms Lemon submits that this passage draws a clear distinction between a copy of the issued claim form and the original document itself and shows that there would have been good service only if the original issued claim form had been sent.[32]Mr Jonathan Selby, who acts on behalf of the defendants, submits that service of a copy of the sealed claim form amounts to good service and the claim form was therefore validly served when Prettys enclosed it with the letter of 23 January 2013. He submits that there is no practical difference between a document containing an original seal as opposed to a copy of that document. He submits that the CPR do not expressly provide that a copy bearing an original seal has to be served, rather than a copy of such a document. The CPR merely provides that the claim form should be served. He also submits that CPR6.3(1) and 7.5(1) envisage that the original does not need to be served because it permits service by fax or other means of electronic communication.[33]He points out that the letter of 23 January 2013 did not expressly provide that the claim form was being served “for information only”. He refers to and relies on the decision of Tugendhat J in Weston v Bates [2013] 1 WLR 189. In that case permission had been given to serve a claim form out of the jurisdiction. Pursuant to the court order and in accordance with CPR6.40(3)(c) the claimant took steps to serve the claim form through local agents using a procedure permitted by local law. As all the papers had been forwarded by e-mail for the purpose of service the documents served included a black and white print out of the electronic copy and a translation. The print out showed the English court’s seal and stamp. The defendant applied for an order that the court had no jurisdiction on the basis that under the CPR and the order granting permission for service out of the jurisdiction, there was required to be service of the original, sealed claim form and not a copy of it. In giving judgment Tugendhat J referred to the decision of the Court of Appeal in Cranfield v Bridgegrove and what Dyson LJ had said, as cited above, at [87].[34]Tugendhat J accepted that what was required for service within the jurisdiction could not be imported into the requirements of service outside the jurisdiction although he stated that it was an aid to construction. At [49] he referred to the fact that although the court in Murphy referred to “the original claim form” there was no discussion in that case or other cases referred to as to what was meant by the original claim form, nor of what was referred to in that case as first generation and second generation copies. At [63] he said that such terms were not terms that could be derived from the CPR and added:
“So far as the Civil Procedure Rules are concerned, what constitutes a claim form is a matter of substance. The words “claim form” are not a reference to a particular hard copy of a document.”
[35]In addition Mr Selby relies on passages in the judgment of Christopher Clarke J in the Hanjin Shipping case where he decided whether or not what happened in relation to the claim form in that case amounted to service. At [19] he said this:
“That question must - as is common ground - be judged objectively, that is to say by looking at what was done and said by and as between the parties in order to determine whether it amounts to service. If it does so, an unexpressed intention that it should not do so cannot alter the position. If it does not do so, the fact that the person who did the acts in question intended or thought that what he did constituted service does not make it so. Whether service has been effected cannot depend upon the views, possibly idiosyncratic or even bizarre, of individual litigants or their advisors.”
[36]On the facts of that case he concluded that the claim form had been properly served. He said this at [33]:
“When a claim form is delivered to the recipient in a manner provided for by the rules it is, in my view, served unless it is made clear by the person who delivers it that, whilst he is delivering the form by such a method he is not in fact serving it.”
[37]He added this at [36] and [37]:
“36. The facts (i) that no response pack was served, (ii) that the claim form was marked "Claimant’s Copy" and (iii) that the fax did not state that the claim form was faxed "by way of service" do not in my judgment demonstrate that no service was intended at all. … 37. I am conscious that it is necessary to look at the cumulative effect of the matters upon which Mr Berry relies but even when I do so I am not persuaded that they demonstrate that the claim form was not provided by way of service.”
Service of the claim form[38]The first question raised on the claimant’s application is whether the photocopy of the sealed claim form enclosed with Prettys’ letter of 23 January 2013 was a “claim form” within the meaning of the CPR.[39]Under CPR7.2 (1) “Proceedings are started when the court issues a claim form at the request of the Claimant” and under CPR 2.6(1) “the Court must seal the following documents on issue- the claim form ….”[40]In my judgment the effect of those two rules is that, as a general rule, a claim form is the document issued by the court on which the court seal is placed. When therefore CPR6.3(1) states that “A claim form may… be served by any of the following methods…”, I consider that, again as a general rule, it is the document issued and sealed by the court which is the relevant claim form.[41]There are clearly exceptions. When a claim form is served by fax or other means of electronic communication under CPR 6.3(1)(d) in accordance with Practice Direction 6A then necessarily there is not service of the original document issued and sealed by the court. In such circumstances the hard or soft copy of the fax or the soft copy or print out of the attachment to an e-mail is the document served but in each case the hard or soft copy represents a copy of the claim form issued and sealed by the court. Practice Direction 6A at paragraph 4.3 states “Where a document is served by electronic means, the parties serving the document need not in addition send or deliver a hard copy.” In the absence of that Practice Direction the parties serving a claim form by fax or other electronic means would have had to serve, in addition, a hard copy of the claim form as issued and sealed by the court.[42]In Weston v Bates the question was whether the order granting permission for service out of the jurisdiction required service of the original, sealed claim form itself and not a copy of it. The relevant document was a black and white electronic copy of the claim form which had been e-mailed and then printed out. The print out showed the English court’s seal with the relevant date and showed a court stamp with the words “Defendant’s Copy”. In coming to his decision Tugendhat J accepted that what would be required for service within the jurisdiction cannot be imported into the requirements for service out of the jurisdiction. It was no more than an aid to construction: see [46]. He came to the conclusion that all that CPR6.40 (3)(c) provided for was that the steps required to bring a claim form to a person’s attention may be taken by any method permitted by the law of the country in which those steps are to be taken. He concluded that if those steps were successful in bringing the claim form to that person’s attention by such a method there was no additional requirement that a particular hard copy of the claim form was to be used.[43]Whilst he referred to the Court of Appeal decision in Cranfield v Bridgegrove and accepted that it must be given great weight, even if it were obiter, he said that although the court referred to the “original claim form” there was no discussion as to what was meant by “the original claim form” nor of first generation and second generation copies.[44]Although he refers to what is required under the CPR, I note that at [18] he refers to what the Master said in her original judgment where she correctly, in my judgment, “expressed grave doubts as to whether, if service were effected within the jurisdiction, anything less than a sealed copy of the claim form (what she called a “first generation copy”) would suffice, save in cases where the rules specifically so provide (as they do for example, in permitting service by fax or e-mail: CPR r 6.3(i)(d).”[45]In my judgment the statement in Murphy within the judgment in Cranfield v Bridgegrove must be given great weight in the context of this case which concerns the question of what is properly required for service of a claim form within the jurisdiction. In my judgment under the CPR what is required, as a general rule, is service of a hard copy document as issued and sealed by the court and a photocopy of that document is not sufficient. When a claim form is issued there is an original sealed claim form retained by the court and original sealed claim forms provided so that one can be retained by the claimant and one or more can be served on the defendants. As stated in Cranfield v Bridgegrove at [87] the only flaw in the process was that “a copy of the issued claim form” rather than “the original document itself” was received. In that case the copy was a faxed copy of the original claim form.[46]It is evident from the judgment of Dyson LJ that a copy of the claim form was not sufficient and that what was required was a document originally issued and sealed by the court. For those reasons, in this case the photocopy of the claim form which was sent by Document Exchange to Birketts on 23 January 2013 was not the document required for service to be achieved under CPR 6.3. In order to effect proper service by that means I consider that a claim form, as issued and sealed by the court and as an original document would have had to have been enclosed with Prettys’ letter.[47]In this case, unlike most cases, it is the claimant who is contending that there was not proper service of the claim form whilst the defendants are contending that there was. In most cases the position is reversed and in those circumstances CPR 3.10 may apply so that any error of procedure does not invalidate any step taken in the proceedings unless the court so orders or, as in the case of Murphy in Cranfield v Bridgegrove, the court may decide to exercise its discretion to dispense with service of the claim form under what is now CPR 6.16. Equally, where, as in this case, a defendant becomes aware that a claim form has been issued the defendant can serve a notice requiring service under CPR 7.7 so as to obtain a remedy. In the present case none of the provisions apply or were sought to be applied.[48]Therefore I conclude that the claim form was not properly served on 23 January 2013 when a photocopy was sent with that letter. I therefore set aside the order of 13 March 2013 and the claim form is therefore still effective for service.[49]If, contrary to what I have found above, the claim form was in a version which was capable of amounting to good service then, as Christopher Clarke J said in Hanjin Shipping at [19], the question is whether what happened in this case amounted to service when judged objectively, that is to say by looking at what was done and said by and as between the parties.[50]In this case, that question requires an objective construction of the letter of 23 January 2013 which enclosed the copy of the claim form to Birketts. That letter has to be read against the background of the dispute between the parties and the conversation which had taken place between Mr Blake and Mr Rush on 18 January 2013. I consider that the relevant background facts are as follows.[51]There was a dispute between the parties as to the amount due under the building contract. A final certificate had been issued on 20 December 2012. Under the JCT Intermediate Form of Contract that final certificate would become conclusive in relation to matters in issue between the parties unless proceedings were issued within 28 day of the certificate.[52]The final certificate required payment of £21,970.96 from the claimant to the defendants. The claimant had issued a claim form on 16 January 2013 and had been obliged to issue the claim form in haste to avoid the final certificate becoming conclusive so that there had not been time for any pre-action protocol process. The claimant was seeking a stay of proceedings to allow the parties time to comply with the pre-action protocol. During the conversation between Mr Blake and Mr Rush on 18 January 2013 no question of service of the claim form had been raised.[53]When read against that background, the statement in Prettys letter of 23 January 2013 referring to the conversation on 18 January 2013 and saying “Please find enclosed a copy of the issued Claim Form” cannot, in my judgment, be construed objectively as showing an intention to serve the claim form under CPR 6.3. There is a reference to enclosing a copy of the “issued claim form” rather than any statement to the effect that the claim form was being sent to Birketts by way of service. The reference in that letter to a stay was a necessary step where a claim form was issued when the pre-action protocol had not been complied with and is not of assistance in construing the objective intentions of the parties on the question of service.[54]It follows that, reading the letter of 23 January 2013 objectively against the relevant background I do not consider that the claim form was intended to be served under CPR 6.3 when it was enclosed with Prettys’ letter of 23 January 2013.[55]I note that this is also consistent with Birketts’ reply on 20 February 2013 in which they confirmed “we accept this as service of the said Claim Form”. It seems to me that this statement that Prettys’ letter and enclosure was accepted “as service” of the claim form indicates strongly that, although not proffered by way of service, the defendants were intending to treat in that way. Extension of time for service of the Particulars of Claim[56]On the basis set out above, the claim form was not properly served. The claim form has to be served within its period of validity and, to put the matter beyond doubt, I extend time for service of Particulars of Claim to 15 May 2013.[57]If, however, I had come to a different view and decided that the claim form had been served in an appropriate form under CPR 6.3 when sent by letter dated 23 January 2013 then the question is whether in such circumstances it would have been appropriate for me to extend time for service of the Particulars of Claim.[58]In this case, as in a number of claims brought in the TCC, there was a need to commence proceedings to avoid a contractual time bar. In general parties who commence proceedings in the TCC are required to comply with the Pre-Action Protocol for Construction and Engineering Disputes (“the Protocol”). That includes a provision in paragraph 6 as follows, to deal with the Limitation Act or other statutory time limits:
“If by reason of complying with any part of this protocol a claimant’s claim may be time-barred under any provision of the Limitation Act 1980, or any other legislation which imposes a time limit for bringing an action, the claimant may commence proceedings without complying with this Protocol. In such circumstances, a claimant who commences proceedings without complying with all, or any part, of this Protocol must apply to the court on notice for directions as to the timetable and form of procedure to be adopted, at the same time as he requests the court to issue proceedings. The court will consider whether to order a stay of the whole or part of the proceedings pending compliance with this Protocol.”
[59]Whilst that provision does not deal with the position where, as here, there is a contractual time limit, it is usual for parties who fail to comply with the Protocol to seek to agree a stay of proceedings pending compliance with it. Often there is agreement, for instance, that the claim form will be served and an acknowledgment of service filed, with a stay of proceedings whilst the Protocol is complied with. In the present case whilst no application for directions was required to be or was made at the time of the issue of the claim form, Prettys sought to agree a stay with Birketts both during the telephone conversation on 18 January 2013 and in their letter of 23 January 2013.[60]They received no response from Birketts until the letter of 20 February 2013 when the defendants stated that they required either service of Particulars of Claim by 6 March 2013 or for the claimant to put forward acceptable proposals for a Protocol meeting within 7 days, in which case the defendants were prepared to agree an extension of time for service of the Particulars of Claim.[61]It was regrettable that the letter in reply sent by Mr Blake of Prettys on 25 February 2013 did not, for whatever reason, reach Mr Rush at Birketts. Besides stating that it had not been intended to serve the claim form, that letter indicated that the suggestion of a Protocol meeting had been accepted. It indicated that Prettys would come back to Birketts with suggested dates for a meeting during the course of that week, that is, by 1 March 2013. In the event that did not happen.[62]Having heard nothing from Prettys because that letter of 25 February 2013 was not received by them, Birketts then issued their application notice on 8 March 2013 seeking to have the claim form struck out for failure to serve Particulars of Claim by the extended date of 6 March 2013 agreed in Birketts’ letter of 20 February 2013. The witness statement from Mr Rush indicated that there had been no correspondence from the claimant or Prettys since 23 January 2013 or in response to Birketts’ letter of 20 February 2013. The application of 8 March 2013 was evidently dealt with on that basis.[63]I now consider whether, if the claim form had been properly served on 23 January 2013, the court would have granted an extension of time on the claimant’s application in response to the defendants’ application dated 22 March 2013. On the premise that the claim form was served on that date, the Particulars of Claim should have been served within 14 days after the service of the claim form. By the time of the claimant’s application of 22 March 2013, time for service of the Particulars of Claim had expired and the defendants had offered to extend time to 6 March 2013 in Birketts’ letter of 20 February 2013.[64]Ms Lemon submits that under CPR3.1(2)(a) the court may extend time for compliance with any rule, even if an application for an extension is made, as here, after the time for compliance has expired. She also relies on the general discretion granted in CPR3.1(m). She refers to the Court of Appeal decision in Sayers v Clarke Walker [2002] EWCA Civ 645 where guidance was given on the court’s exercise of its discretion under CPR3.1(2)(a) in the context of extending time under CPR 52. Brooke LJ with whom the other members of the Court of Appeal agreed said at [19] that in very many cases a judge would be able to decide whether to extend time by considering the cause of delay and the steps taken prior to the application. At [21] he added that it would be appropriate for the court to have regard to the checklist in CPR 3.9 when considering an extension of time for appealing in a case of any complexity.[65]In Robert v Momentum Service [2003] 1 WLR 1577 the Court of Appeal distinguished Sayers when considering an application for extension of time to serve Particulars of Claim. Dyson LJ, with whom the other members of the Court of Appeal agreed said at [33]:
“It is clear that Brooke LJ treated Sayers's case as a relief from sanctions case, or at least closely analogous to such a case. That is because the time for appealing had already expired when the application for an extension of time was made. I see no reason to import the rule 3.9(1) checklists by implication into rule 3.1(2)(a) where an application for an extension of time is made before the expiry of the relevant time limit. There is a difference in principle between on the one hand seeking relief from a sanction imposed for failure to comply with a rule, practice direction or court order, where such failure has already occurred, and on the other hand seeking an extension of time for doing something required by a rule, practice direction or court order before the time for doing it has arrived. The latter cannot sensibly be regarded as, or even closely analogous to, a relief from sanctions case. If the draftsman of the rule had intended that the checklist set out in rule 3.9(1) should be applied when the court is exercising its discretion under CPR 3.1(2)(a) in such a case, then he could and, in my judgment, would have said so. By not spelling out a checklist in rule 3.1(2)(a), it seems to me that the draftsman was intending that the discretion should be exercised by simply having regard to the overriding objective of enabling the court to deal with cases justly including, so far as practicable, the matters set out in rule 1.1(2) .”
[66]In the present case the application made under CPR 3.1(2)(a) is made after the time has expired. The analogy of relief from sanctions therefore applies and, in principle, I consider that I should have regard to the matters in CPR3.9. The claimant’s application for an extension of time was made on 22 March 2013 and therefore the amendments to CPR3.9 which came into effect for applications under CPR 3.9 made after 1 April 2013 do not apply. However, the amendment to the overriding objective at CPR 1.1(2)(f) to add the provision that dealing with a case justly and at proportionate cost includes, so far as is practicable, “enforcing compliance with rules, practice directions and orders” applies from 1 April 2013.[67]In considering whether to grant an extension of time, Ms Lemon submits that it is in the interests of justice to grant an extension, given the way in which matters developed after issue of the claim form on 16 January 2013. She submits that the application was made promptly and that the failure to comply was not intentional because the claimant did not intend, subjectively, to serve the claim form. Whilst the claimant has failed to comply with the Protocol, it had good reason for not doing so given the stringent contractual time limit and sought to obtain a stay by consent. She points out that, on this premise, the mistake here was that of the claimant’s legal representatives and referred me to the decisions in Short v Birmingham City Council [2004] EWHC 2112 (QB) and Welsh v Parnianzadeh [2004] EWCA Civ 1832. She states that no trial date has been fixed and that the claimant, not the defendants, will suffer significant prejudice if the order is not granted. She did, as also did Mr Selby, reserve the position as to what would be the position in relation to the conclusive effect of the Final Certificate if the claim form once issued was struck out.[68]Mr Selby submits that no extension of time should be granted. He says that there was no proper reason for the Particulars of Claim not being served and the unavailability of Mr Witting after 25 February 2013 is not an explanation and certainly does not justify an extension until 15 May 2013. He points out that the underlying final account dispute arose in 2012. So far as the failure to serve the Particulars of Claim within time, he submits that, even allowing for the failure of the letter of 25 February 2013 to reach Birketts, it should have been evident that no extension of time had been agreed beyond the offer of 6 March 2013 date and an application should have been made to extend time. He submits that there has been a failure to comply with the Protocol, to serve the Particulars of Claim or to apply in a timely manner for an extension of time. Whilst the failure is a failure of the claimant’s representatives there would be a remedy against the solicitors. The defendants would, he submits, suffer prejudice if the claim has to be contested.[69]I am quite clear that given the change to the overriding objective and to CPR3.9, if this application had been made after 1 April 2013, it would not have been granted. The need for compliance with the rules practice directions and orders now forms an essential part of the CPR.[70]This case relates to an application made before 1 April 2013 where the new CPR3.9 does not apply by way of analogy. Whilst there can be criticism of the claimant’s legal representatives on the premise that the claim form was properly served, they did properly seek a stay whilst the Protocol meeting took place and the background to the service of the claim form and the missing letter of 25 February 2013 provide an explanation for the failure to apply to the court before 22 March 2013, in response to the order of 13 March 2013 and when no agreement could be reached. Equally, whilst the stay was being pursued, it would have been inappropriate to spend costs preparing for the matter to be resolved by proceedings. I consider that the question of prejudice is best treated as neutral, given that I am not asked to decide on the effect on the final certificate should the claim form be struck out.[71]Overall and not without some hesitation, I am of the view that the unusual circumstances of this case would justify an extension of time, applying the rules on 26 April 2013 as they applied to an application issued before then. On that basis, I consider that an extension of time to 15 May 2013 would be the appropriate extension. Conclusion[72]For the reasons set out above, I consider that the claim form was not properly served under cover of the letter from Prettys of 23 January 2013. As a result, the order dated 13 March 2013 should be set aside so that the claim form is still valid and effective. I extend time for the service of the Particulars of Claim until 15 May 2013 and would, on balance, have done so even if the claim form had, contrary to what I have found to be the position, been properly served on 23 January 2013.

Cited in 5 later judgments