Court grants extension of time to serve claim form out of the jurisdiction
The claimant experienced delays in effecting service of the claim form on the defendants, including a hospital in the United Arab Emirates ("UAE"). The Foreign Process Section ("FPS") of at the Royal Courts of Justice advised the claimant that service in the UAE can take between six and 12 months, or more, and that an extension of time to serve should be sought (under CPR r7.6). Two extensions of time were granted but the second one was subsequently set aside. The claimant appealed against that decision and that appeal was allowed.
The defendants referred to Foran v Secret Surgery [2016], in which the judge held that an extension of time should not have been granted in a service out of the jurisdiction case. The judge in that case said that the six-month period for service out was generous, but in this case Foskett J commented that "I respectfully question whether the 6-month period allowed for service outside the jurisdiction does cater in all circumstances for the difficulties of effecting service through the FPS process". Furthermore, the claimant's solicitors in Foran had been criticised for not pursuing matters with the FPS to see how service could be expedited, but the judge in this case said that the FPS's website (at least now) makes it clear that such enquiries are "obviously discouraged and, frankly, futile". Furthermore, where, as in the UAE, alternative means of service are not ordinarily possible, there would be no point in making such enquiries.
A further issue taken into account in this case was the total lack of communication by the defendants. The judge commented that "in my view, the complete failure of the Defendants to respond at all to these various communications ought to weigh heavily against the otherwise important consideration of the expiry of the limitation period". The defendants' insurers had initially advised the defendants not to respond to the claimant and the judge noted that "it does appear that the hospital itself did react properly to the communications from the
Claimant's solicitors and, perhaps, assumed that the insurers would acknowledge those communications. That would, of course, have been the anticipation of all parties if an insurer in the UK was the recipient of communications such as these from an insured". Accordingly, the defendants had not advised the claimant that a notarised power of attorney authorising the defendants' solicitors to act was first required under UAE law, before correspondence could be entered into. The judge was critical of that stance, saying that it had hampered the claimant in putting its case together.
Prior case law has established that defendants generally do not have to cooperate with a claimant to assist with service of the claim form. However, here, the issue was that the lack of cooperation prevented the claimant from formulating its case and drafting the claim form (which in turn impacted on its ability to serve before the expiry of the limitation period). It is a fairly generous decision for the claimant, but the judge may have been influenced to some degree by the nature of the claim, having stated that the prospect of the claimant having to apply to the court to exercise its discretion to allow the otherwise time-barred claim to proceed was not "an attractive proposition when the effective, lifetime interests of a seriously disabled child are in issue".
ADR
A working group of the Civil Justice Council has recommended that "the Court should promote the use of ADR more actively at and around the allocation and directions stage. We think that the threat of costs sanctions at the end of the day is helpful but that the court should be more interventionist at an earlier stage when the decisions about ADR are actually being taken". However, the group did not go so far as recommending that ADR should be a mandatory condition of being able to issue proceedings. A link to the report can be found here:
Disclosure
Plans have been announced for a two-year pilot scheme on disclosure for the Business and Property Courts, i.e. the Commercial Court, TCC, Chancery Division and the
Financial List, as well as the Business and Property Courts in Birmingham, Manchester, Leeds, Bristol, Cardiff, Newcastle and Liverpool.
It is anticipated that changes to the CPR will be sought in spring 2019. In essence, the changes are intended to ensure greater take-up of the "menu" of options for disclosure which was introduced in 2013 (and which, it seems, judges have been reluctant to adopt so far). The key changes are as follows:
- "Standard disclosure" will disappear and there will be no one "default" order.
- "Basic Disclosure" of the documents on which a party intends to rely (and which are necessary to understand the case) will be given with statements of case.
- The Electronic Disclosure Questionnaire will be replaced with a joint Disclosure Review Document ("DRD"). The DRD must be produced after the close of statements of case and before the first Case Management Conference.
- The DRD will include proposals for "Extended Disclosure".
- There will be five "Extended Disclosure" Modules, ranging from no disclosure on a particular issue to disclosure of documents which may lead to a train of enquiry.
- The courts should be proactive and not just accept the Modules proposed by the parties.
- Form H Costs Budgets in relation to disclosure will be completed after the disclosure order is made (although costs estimates should be provided in the DRD).
Further details can be found here:
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.