High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"7. - (1) For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for 12 months beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.

(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, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any) as the Court may allow."

1. The power to extend the validity of a writ should only be exercised for good reason.

2. The question whether good reason exists in any particular case depends on all the circumstances of that case. Difficulty in effecting service of the writ may well constitute good reason, but it is not the only matter that is capable of doing so.

3. The balance of hardship between the parties can be a relevant matter to take into account in the exercise of the discretion. This only arises if matters amounting to good reason for extension, or at least capable of so amounting, have been established. Waddon v Whitecroft Scoville Ltd [1988] 1 WLR 309.

4. The discretion is that of the judge and his exercise of it should not be interfered with by an appellate court except on special grounds the nature of which is well-established.

5. Where the application for extension is made at a time when the writ has ceased to be valid and the relevant period of limitation has expired not only is good reason necessary but the applicant must also give a satisfactory explanation for his failure to apply for extension before the validity of the writ has expired.

"The question then arises as to what kind of matters can properly be regarded as amounting to "good reason". The answer is, I think, that it is not possible to define or circumscribe the scope of that expression. Whether there is or is not good reason in any particular case must depend on all the circumstances of that case, and must therefore be left to the judgment of the Judge who deals either with an ex parte application by a plaintiff for the grant of an extension, or with an inter partes application by a defendant to set aside an extension previously granted ex parte."

"The plaintiffs' solicitors are under a duty to their client to serve the writ in time, even though negotiations are still in progress. Negotiations for a settlement do not afford any excuse for failing to serve a writ in time or to renew it."

"…..although it may not be possible to say that there is an express or implied agreement, nevertheless there has been conduct by the defendant leading the plaintiff to suppose it would be all right to defer service of the writ, with the result that the defendant can be said to have been a party to the delay in serving the writ even though there is no express or implied agreement.

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Counsel for the plaintiffs has not been anxious to put his case as high as saying that there is to be spelt out of the letters to which I have referred an agreement between the parties that service of the writ should be deferred. He has put the matter more broadly, saying that, if one looks at the whole of the negotiating process, there was an agreement to defer litigation until it was obvious that a settlement could not be achieved. Despite his diffidence in the matter, I am of the opinion that, upon a fair construction of these letters, there was an agreement that service of the plaintiff's writ should be deferred so long as negotiations were continuing. If I am wrong about that, then I am of the opinion that there was, at the least, conduct by the defendants in response to conduct by the plaintiffs of such a character as to lead a reasonable solicitor acting for the plaintiffs to believe that service of the writ could be deferred."

"For my part, I am not absolutely certain what 'being a party to the delay' in the circumstances in which there is no inference that the defendant agreed to the delay means. The fact of negotiations in themselves is not a good reason, the authorities show. In my view, if by words or conduct a defendant has led the plaintiff to believe that the defendant consents to an extension of validity of the writ, or will do so, that may well be a ground for inferring an agreement to that effect. But in the absence of such an agreement or, of course fraud, then something less is, in my judgment, not enough. If that means that the second part of the dictum of Mr Justice Brandon in The Owenbawn was incorrect in law then I would so hold."

"I cannot read anything more into the correspondence that (sic) that the defendants' representatives were content to negotiate, and if while they negotiated time slipped by and the plaintiffs' solicitors did nothing about it, it was not their, the defendants', representatives' responsibility to remind them of the fact. In other words, if the plaintiffs' solicitors were mislead, I think it was because they mislead themselves."