The dangers of leaving service of proceedings until the last minute

There have been many authorities relating to late service of proceedings and the court’s approach to applications for extension of time for service. Some of these have been supportive to claimants, but there have been others which have given their solicitors sleepless nights.

The recent case of Foran v (1) Secret Surgery (Ltd) (2) Powszechny Zaklad Ubezpieczen Spolka Akcy JNA (3) Wojciech Waclawowicz (4) EMC Instytut Medyczny  Spolka Ackyjna once again serves as a warning the perils of leaving service until the last minute. Whilst this case was far from straightforward and involved no less than four defendants in different jurisdictions, the court ultimately held that the six-month period allowed for service under CPR 7.5(2) on defendants outside the jurisdiction was more than sufficient.

It was an unfortunate set of circumstances that led to the late application for an extension by the claimant’s solicitors that even the master who heard the application was sympathetic and gave permission for an extension of time for service. But the defendants appealed and were successful in proving there had been no valid reason for the delay in service.

The claimant suffered unsightly scarring following elective cosmetic surgery carried out in Poland on 9 May 2012 and brought a claim for medical negligence against a British tour operator and three Polish defendants. A letter of claim was sent on 27 March 2015 to which no response was received and protective proceedings were issued on 6 May 2015. One of the four defendants, the specialist tour operator, was domiciled in the UK, and the surgeon, medical centre and their insurers were all domiciled in Poland. This meant service had to be effected on the first defendant by 6 September and the three others by 6 November 2015.

Proceedings were served on the first defendant on 2 September 2015 in compliance with the four-month service requirement under CPR 7.5(1) for defendants in England and Wales. On 2 October 2015, the claimant’s solicitors instructed Polish agents to effect service on the second, third and fourth defendants by 6 November 2015, so as to meet the six-month service requirement imposed in CPR 7.5(2) for service of proceedings abroad. However, on 13 October 2015, they were informed by the Polish agents that only the Polish Court was entitled to serve proceedings and consequently determined that the Foreign Process Section at the High Court was the appropriate course of action. Therefore realising that they would be unable to effect service on the three Polish defendants by 6 November 2015 deadline, the claimant’s solicitors issued an application for an extension of time for service shortly after.

This application was considered on paper and then at a hearing in January 2016 and granted by the master who considered the claimant had valid reasons for an extension.  At this hearing, the master considered the issue with reference to CPR 76  and the overriding objective and determined that there must be a valid reason for an extension to be granted. Having heard the parties’ submissions he considered that the claimant did have a valid reason due to the combination of complex factors and that her solicitors had taken reasonable steps to comply with CPR 7.5. He also mistakenly determined that the application had been made within the limitation period and there had been valid reasons for extending time.

The defendants appealed this decision successfully with the judge concluding the master had erred in his interpretation of the CPR, there were no valid reason given for the delay of service by the claimant, the six-month period allowed for service set out in CPR 7.6 (2) was generous and took into account the difficulties experienced by the claimant’s solicitors which could be expected. Also, the master had failed to consider the expiry of the limitation period and loss of the defendants’ potential limitation defence.

The claimant’s argument that the combination of the foreign element, difficulties with translators and problems with the Polish agents rendered the case outside the norm and amounted to a good reason for the request for the extension of time was, sadly, not very persuasive in this instance.

It was also highlighted that the master had been incorrect to deal with the application on paper and that such urgent applications involving the extension of time-limits should be dealt with by urgent hearing as per Collier v Williams.