Leeds LS1 3BG
B e f o r e :
| MONICA WENDY INSTONE
|- and -
|PROSECCO (LEEDS) LIMITED
Michael Smith (instructed by Keoghs LLP) for the Defendant
Hearing date: 7 April 2016
Crown Copyright ©
2. The facts
The investigation up to 2014
Events leading to the withdrawal of the application to restore Prosecco.
"We are currently reviewing and have requested further information from our insured's broker.
Our insured is Prosecco (Leeds) Limited, not Primo Restaurants Limited. We are trying to ascertain who is responsible for the area concerned and the relationships between the companies (should one exist) and the property owners.
As such, as investigations are ongoing, we are not prepared to nominate solicitors at present. We will revert as soon as possible".
"With reference to the above mentioned claim. We note that you have made an application to the Courts for an order to restore both Prosecco (Leeds) Limited and Primo Restaurants Limited. Could you please advise the reasons for restoring Prosecco (Leeds) Limited.
After looking through the documentation, we note that Prosecco (Leeds) Limited are not named in lease and the registered address for Prosecco (Leeds) Limited is not where the accident occurred.
1. They had no way of knowing who was in occupation of the restaurant.
2. The lease showed Primo as the tenant,
3. Zurich, on review, had pointed out that Prosecco was not the tenant and, by inference suggested that it was not in occupation.
4. The liquidator of Prosecco had indicated that he would not consent to the restoration of Prosecco and would incur costs of least £2,500 if Prosecco was restored to the register. The costs of an opposed application would no doubt be higher than those of an unopposed application. Cohen Cramer were not in funds.
3. The law
Effect of Dissolution
It is worth pointing out that when the company became dissolved the primary limitation period applicable to Mr Macdonnell's proposed action had not yet ' expired, and that from the date of dissolution until such time as the company should be restored to the register it was not possible for an effective action against the company to be commenced.
On 3 September 1986, some 24 days before the expiration of the primary limitation period, Mr MacDonnell's solicitors issued a writ naming the company as defendant. This, although the solicitors obviously did not realise it, was a nullity. The named defendant did not exist.
'(1) Where a company has been dissolved, the court may, on an application made for the purpose by the liquidator of the company or by any other person appearing to the court to be interested, make an order, on such terms as the court thinks fit, declaring the dissolution to have been void.
(2) Thereupon such proceedings may be taken as might have been taken if the company had not been dissolved.'
'(1) Subsection (2) applies if a company or any member or creditor of it feels aggrieved by the company having been struck off the register under section 652.
(2) The court, on an application by the company or the member or creditor made before the expiration of 20 years from publication in the Gazette of notice under section 652, may, if satisfied that the company was at the time of the striking off carrying on business or in operation, or otherwise that it is just that the company be restored to the register, order the company's name to be restored.
(3) On an office copy of an order . . . being delivered to the registrar of companies for registration the company . . . is deemed to have continued in existence as if its name had not been struck off; and the court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position (as nearly as may be) as if the company's name had not been struck off.'
There is a difference between s 653(3), which has been aptly described as an 'as you were' provision, and s 651(2), which is prospective save for the future perfect in the phrase 'declaring the dissolution to have been void', and has frequently been commented upon in the context of the legislative predecessors of ss 651 and 653 of the 1985 Act.
(1) The general effect of an order by the court for restoration to the register is that the company is deemed to have continued in existence as if it had not been dissolved or struck off the register.
(3) The court may give such directions and make such provision as seems just for placing the company and all other persons in the same position (as nearly as may be) as if the company had not been dissolved or struck off the register.
Extension of time for service of claim form
Extension of time for serving a claim form
(1) The claimant may apply for an order extending the period for compliance with rule 7.5.
(2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made
(a) within the period specified by rule 7.5; or
(b) where an order has been made under this rule, within the period for service specified by that order.
(3) 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 reasonable steps 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.
It seems to me that the right approach is to consider what steps were taken in the four month period and then to ask whether, in the circumstances, those steps were all that it was reasonable for the claimant to have taken. The test must, in my view, be objective; the test is not whether the claimant believed that what he had done was reasonable. Rather it is whether what the claimant had done was objectively reasonable, given the circumstances that prevailed.
This court has on more than one occasion stressed that one of the intentions behind the Civil Procedure Rules is that litigation should proceed expeditiously and that time limits should be taken seriously: see for example Vinos v Marks & Spencer PLC  3 AER 784 at 789-790. Also, this court has warned litigants of the dangers of leaving until the last minute the taking of a procedural step governed by a time limit: see for example Anderton v Clwyd County Council (supra) at page 3184. If repetition of this warning is necessary, let this case provide it. A litigant is entitled to make use of every day allowed by the rules for the service of a claim form. But it is well known that hitches can be encountered when trying to effect service. A litigant who leaves his efforts at service to the last moment and then fails due to an unexpected problem is very unlikely to persuade the court that he has taken all reasonable steps to serve the claim in time. Without such a finding, the court will be unable to extend time for it is only if both sub-paragraphs (b) and (c) of Part 7.6(3) are satisfied that the court has any discretion to grant relief. A litigant who delays until the last minute does so at his peril.
The question of whether a reason connected with funding amounted to good reason was considered by the Court of Appeal in Cecil v Bayat  EWCA Civ 135,  1 WLR 3086, CA. Before the four month period expired the court granted an extension of six months for service in a high value contract claim on the basis that the claimant needed time to secure funding for the claim. Within that period, during which limitation expired, the claimant applied for and was granted a further six month extension. Both applications were made ex parte. After a CFA with ATE insurance were agreed, the claim form was served 11 months after issue. The Court of Appeal, overruling the judge, upheld the defendant's application to set aside the extensions on the grounds that the court may exercise its discretion to extend time for service under r.7.6(2) only where there is good reason to do so and generally, that reason, must be a difficulty in effecting service. While without a CFA and ATE insurance it was not viable for the claimant to take the claim to trial, they could have commenced the claim and served their claim form without them. The claimant's deliberate decision to secure their position as to costs by delaying service until funding was in place for the whole of the proceedings did not provide a good reason for extending time under r.7.6(2), and in the circumstances, the claimant should have served the claim form in the period of its initial validity and then, if they were not in a financial position to proceed with the claim immediately, applied inter partes for a stay, or an extension of the time for procedural steps to be taken. The starting-point is that a defendant has a right to be sued, if at all, by means of originating process issued within the statutory period of limitation and served within the period of its initial validity for service.
"What I am concerned with, however, is whether the claimant had taken all reasonable steps to comply with 7.5. It had been unable to do so. It is perfectly clear that the claimant sought to serve on the third defendant's old office, but they were unable to do so. Of course they were unable to do so because the third defendant no longer existed. That was obvious to them on 24 November. It was obvious to them on 24 November that the third defendant needed to be restored to the company registry. There is no explanation, save that the claimant is a small company and I understand Mr Sillett to be speaking for the claimant. There is no explanation for why it did not take proceedings or start proceedings to have that company restored to the register at an earlier stage. I am told that it was assumed that this matter would go through very simply and very easily. I am told that they often do. That is no guarantee that they will go through in a very straightforward manner. It may take longer. In my view the claimant has failed to demonstrate that it took all reasonable steps to comply with the rule when it failed to make an application for the company to be restored until three months it had issued the claim form."
4. The Judgment of DJ Kelly
5. Discussion and Conclusions