COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Deputy Master Eastman)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
MR JUSTICE BENNETT
| MAHMOOD HASHTROODI
|- and -
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Christopher Purchas QC and Mr Steven Snowden (instructed by Messrs Blake-Turner and Co) for the Appellant
Crown Copyright ©
Lord Justice Dyson:
The proper interpretation of CPR 7.6(2)
"(1) The claimant may apply for an order extending the period within which the claim form may be served.
(2)The general rule is that an application to extend the time for service must be made-
(a) within the period for serving the claim form specified by rule 7.5; or(b) where an order had 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 service of the claim form 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 been unable to serve the claim form;(b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so;(c) in either case, the claimant has acted promptly in making the application."
"…the plaintiff may, before the expiration of the 12 months, apply to the court or judge for leave to renew the writ; and the court or judges if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original…. writ of summons be renewed for six months…."
"(2) where a writ has not been served on a defendant, the court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time….as may be specified in the order, if an application for an extension is made to the court before that day or such later day (if any) as the court may allow."
"..there must be implied in the new rule, as a matter of construction, a condition that the power to extend shall only be exercised for good reason": per Lord Brandon at p 622C-D.
"The whole purpose of making the CPR a self-contained code was to send the message which now generally applies. Earlier authorities are no longer generally of any relevance once the CPR applies."
"…it is not generally helpful to seek to interpret the Civil Procedure Rules by reference to the rules which they replaced and to cases decided under former rules."
"The principle for the future will be that, since the Civil Procedure Rules are a new procedural code, the former body of authority will not apply, although of course the intrinsic persuasiveness of all relevant considerations, including, if they arise, those which were considered persuasive under the former procedure, will be capable of contributing to a just result."
"Although it has been said on a number of occasions that decisions on pre-CPR procedural rules are not binding for the purpose of interpreting the CPR, there are circumstances in which they may be of considerable persuasive force."
"For it is only fair to ask whether the applicant is seeking the court's help to overcome a genuine problem that he has encountered in carrying out service or whether he is seeking relief from the consequences of his own neglect. A claimant who has experienced difficulty should normally be entitled to the court's help, but an applicant who has merely left service too late is not entitled to as much consideration. Whether the limitation period has expired is also of considerable importance. If an extension is sought beyond four months after the expiry of the limitation period, the claimant is effectively asking the court to disturb a defendant who is by now entitled to assume that his rights can no longer be disputed."
"If the court were to ignore delays which occur, then undoubtedly there will be a return to the previous culture of regarding time limits as being unimportant."
"If you then look up from the wording of the rules and at a broader horizon, one of the main aims of the CPR and their overriding objective is that civil litigation should be undertaken and pursued with proper expedition. Criticism of Mr Vinos' solicitors in this case may be muted and limited to one error capable of being represented as small; but there are statutory limitation periods for bringing proceedings. It is unsatisfactory with a personal injury claim to allow almost three years to elapse and to start proceedings at the very last moment. If you do, it is in my judgment generally in accordance with the overriding objective that you should be required to progress the proceedings speedily and within time limits. Four months is in most cases more than adequate for serving a claim form. There is nothing unjust in a system which says that, if you leave issuing proceedings to the last moment and then do not comply with this particular time requirement and do not satisfy the conditions in r 7.6(3), your claim is lost and a new claim will be statute-barred. You have had three years and four months to get things in order."
"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)".
"17. Such an extension will enable me to chase the insurers for a few more days in the hope that they will nominate solicitors. In the event that the insurers still do not nominate solicitors, arrangements will be made to have the Defendant served personally, or at his last known address.
18. In making this application, I bear in mind that the CPR does set down a timetable that should ordinarily be complied with. However, I respectfully suggest that the circumstances of this case justify the short extension of time that I seek. Such an extension is, in my respectful submission, consistent with the overriding objective. Moreover, were the Defendant to ever say that he was prejudiced by the fact that a short extension of time was granted, I would point out that he and his insurers were notified of this claim as long ago as July 2000, and that the principal reason why this extension is now sought is the fact that the Defendant's insurers have not yet confirmed that they are nominating solicitors to accept service."
"I obviously have a discretion in this matter and in exercising my discretion both in relation to that and in relation to the other summons I have to bear in mind the requirement following the overriding principle of effectively doing justice to the parties. I observe that if I accede to the first application the Defendant gets what is commonly known as a windfall limitation defence and escapes a potentially expensive claim. The Claimant would lose his action against the primary tort feasor and must look to a claim against his solicitors. I observe that the result of a claim against his solicitors would be by no means certain. They may have been dilatory and they may have run this case up to the wire so far as limitation is concerned, but I observe that Mr Pike sought to act within time to try and look after his client's interests, and I am of the view that it is not absolutely certain that a negligence claim against the solicitors would succeed. So if I accede to the Defendant's application there is a chance that Mr Hashtroodi would end up with nothing.
Back to the substance of this appeal. It is observed to me that there is no guidance as to whether or not this is a review or a rehearing. I have to say I am not sure it particularly matters. I note that effectively there is nothing substantially new before me than was before the Master on 9th May, save that I now know a little of the toing and froing of the 25th April letter. But the Master saw it and I am satisfied that the fact that the Claimant's solicitors were using what I will describe as the less good address originally and indeed put no reference number on the letter would not have influenced Master Tennant's decision. He had and could have and may have for all I know read the letter with its reference to personal service on Mr Hancock in it, but he chose to make an order. I am satisfied that there was a sufficient reason for him to make an order, namely so that with a little extra time what I will call "safe" service could be achieved rather than the vagaries of other methods. Mr Pike had made efforts to achieve this in time, albeit late in the date.
In all the circumstances I see no reason to differ from Master Tennant's exercise of his discretion and his views on the matter, and that application will be dismissed."
The second decision
"Service by DX is effected, unless the contrary is proved, by leaving the document addressed to the numbered box:
(1) at the DX of the party to be served, or(2) at a DX which sends documents to that party's DX every business day."
The issue concerns the meaning and effect of the words which we have italicised. But since (a) the PD has been amended so as to remove these words, and (b) in view of our conclusion on the first decision this issue is moot in any event, we do not propose to deal with it.