Think you may have a claim? Don’t wait; Delay can have Serious Consequences.
17th February 2013
Unreasonable delay by a Claimant in commencing proceedings was a ‘relevant factor’ in determining an application for permission to extend the time for service of Particulars of Claim, in the recent case of Venulum Property Investments Limited v Space Architecture Limited and Others  EWHC 1242 (TCC).
In this case, the Claimant had waited for over five years before instructing solicitors to pursue a number of claims against various defendants arising out of a purchase of land. The claim against two of the Defendants, and estate agent and the firm for which he worked, was for professional negligence and the claim form was issued on 12 November 2012. It was served on 12 March 2013, by which point the solicitors acting for the Claimant should also have served Particulars of Claim. However, the solicitors had mistakenly believed they had another 14 days to serve the Particulars of Claim, with the effect that, in order to be allowed to serve the Particulars of Claim and pursue its claim, the Claimant would now require from the Court permission to extend time for service of the Particulars of Claim.
This was opposed by the two Defendants mentioned above because, due to the time taken for the Claimants to bring the claim, the Claimant would now be time barred from bringing fresh proceedings; in effect, if the application for an extension of time was refused, the Claimants would be unable to pursue these two Defendants now or in the future.
The application was considered in light of several new provisions to the Civil Procedure Rules, which require that the Court now take a much stronger and less tolerant approach to failures to comply with matters such as time limits.
The Judge considered various factors set out under CPR 3.9 (factors to consider when considering whether or not grant relief from sanctions), including; the interests of the administration of justice; whether the application for relief had been made promptly; whether the failure to comply was unintentional; whether there was a good reason for the failure; compliance with other rules; whether the failure to comply was caused by the party or his legal representative, and; the effect the failure had on each party.
He found the following;
- The wholly unexplained delay in issuing proceedings was relevant, and, in general, it was not satisfactory or in the interests of justice to have claims brought in the closing weeks or months of a long limitation period. He found that, ‘the Court should adopt a stricter approach where a Claimant has, seemingly through its own choosing, left the start of proceedings until the last minute;’
- The reason for the failure to comply with the time limit was a misreading of the rule by the Claimant’s solicitors;
- The consequence of refusing to grant relief for the Claimant was the loss of a right to pursue the Defendants for all time, as against the consequence of granting relief for the Defendants, which amounted to the loss of an accrued limitation defence, with the result that ‘a professional man would have to endure having a claim hang over his head for much longer than would have been the case if the Claimant had pursued its case promptly and complied with the rules.’
The Judge found that, on balance, these factors were finely balanced in this case, and, all things being equal, he would have difficulty in seeing how it would be just or proportionate to allow a short delay to prevent the Claimant from pursing its claim against the Defendants.
However, the Judge found that, particularly in light of stricter approach that must now be taken by the Courts against those that fail to comply with the rules, permission to extend time should be refused because of;
- The complete absence of an explanation for the delay in commencing proceedings;
- The relative weakness of the Claimant’s claim against the Defendants, and;
- The fact that part of the claim was only pleaded in vague terms.
Whilst the claim was not disallowed due the delay (and, so long as it was brought within the limitation period of six years, it could not have been), the fact of the delay likely caused the Court to adopt a stricter approach than it would have done if the claim had been brought at the earliest opportunity, or if a good reason for the delay had been advanced.
The case also underlines the new, less tolerant approach the Court will take to delays and failures to comply with rules, Order and time limits, following the Jackson report. Whilst this will certainly be true where solicitors are instructed, it is understood that Courts will adopt a similar position where litigants are in person; as such, care should be taken by litigants in person that rules and time limits are understood and complied with.
This article is for general information only and is not legal advice. Professional advice should be taken before taking action. No liability can be accepted for any action taken or not taken as a result of this information.