| Practice — Claim form — Service — Parties orally agreeing extension of time for service outside period specified in Rules — Inconclusive evidence indicating agreement written — Whether entitlement to agree extension — Whether written agreement required — CPR rr 2.11, 7.5, 7.6
Thomas v Home Office [2006] EWCA Civ 1355
CA: Jacob, Neuberger and Lloyd LJJ: 19 October 2006
Parties to proceedings were entitled to agree an extension of time for service of a claim form, pursuant to CPR r 2.11, notwithstanding the time limits for service provided in CPR r 7.5.
Any agreement for such extension had to be written, so that an oral agreement between solicitors recorded in a letter sent by one party to the other but not replied to could not constitute a “written agreement of the parties”, nor could an oral agreement evidenced by one or both sides in an internal confirmatory note, unless those notes were exchanged.
The Court of Appeal so held dismissing the appeal of the claimant prison officer, Ian Thomas, against the decision of District Judge Peter Bellamy in Southport County Court on 21 November 2005 allowing the application of the defendant Home Office to strike out the claim, for damages for personal injuries arising out of an accident at work on 7 October 2001, on the basis that there had been no valid service.
The claim form, issued on 1 October 2004, should have been served by 1 February 2005 under CPR r 7.5(2). The parties continued negotiating by telephone as to extensions of time for service, such extensions being recorded in file notes or by letters confirming oral agreements made by telephone. Service was not effected until 23 June 2005.
NEUBERGER LJ said that there was no express provision in r 7.5, or indeed r 7.6, to exclude the applicability of r 2.11 to the time limit in r 7.5. Any implied exclusion of r 2.11 from a time limit in the Rules should only be made if it was necessary to do so in order to enable the Rules to be efficacious in the relevant connection, or if it was obvious that r 2.11 was not intended to be applicable. It was not contrary to logic or principle that the parties should be able to extend time, if they wished to do so, in circumstances in which the court could not do so. Although one could see that it might be desirable for the court to be involved in any agreement to extend time, it did not seem that it was by any means obvious that the court should necessarily be involved. Furthermore, it might have been presumed by the draftsman of the Rules that it was unlikely that a defendant would agree a very prolonged deferral of service once the claim form had been issued. A “written agreement of the parties” would encompass a single document signed by both parties, but there were no grounds either in principle or as a matter of language for limiting it to a single document. An oral agreement which was confirmed in writing by both sides by exchange of letters appeared to be within the concept. The evidence in the instant case was insufficient to amount to a written agreement as contemplated by r 2.11. Although the judge concluded the Rules did not provide for parties to agree to extend time, he was entitled on the facts to conclude that the claim form was served out of time.
LLOYD and JACOB LJJ agreed.
|
