CA-2025-000452 - [2025] EWCA Civ 1413

Issue 2: Should an extension of time for service have been granted?

Mr Fry submitted on Ground 3 of the appeal that the Judge erred in the exercise of his discretion to refuse to extend time. His main argument was that the Judge was wrong to extrapolate what was said in Secretary of State for Levelling Up, Housing and Communities v Rogers [2024] EWCA Civ 1554; [2025] 1 WLR 2759 (“Rogers”) a case concerned with the statutory provisions for service of a claim for planning statutory review under section 288 of the Town and Country Planning Act 1990 (“TCPA”), and apply it to an ordinary case of service of a claim form such as the present. In consequence of that mistaken extrapolation, Mr Fry contended that the Judge was wrong in principle to take into account the behaviour of the solicitors in the period between lodging the unsealed claim form to the date of sealing and issue when gauging whether they had taken reasonable steps to serve the claim form. That period was of little or no relevance, he said, because it was obvious that the claim form could not be served until it had been sealed and issued.

As to the period between issue of the sealed claim form and its receipt by the solicitors, Mr Fry submitted that that period was either irrelevant, or the Judge afforded it too much weight. The rule is solely concerned with whether all reasonable steps have been taken to effect service on the defendant within the prescribed time. The claim form could not have been served on anyone until it was received by the person responsible for effecting service. In this case, that was the solicitors. On the Judge’s findings of fact, the solicitors had no knowledge that the claim form had been issued, and because of this they were in no position to take any steps (reasonable or otherwise) to effect service within time. The question whether the solicitors had taken reasonable steps to effect service within time should have been answered solely or mainly by reference to the period after it came into their physical possession.

The first question to be addressed is whether the relevant period over which the court evaluates what, if any, steps the claimant (or their legal representatives) took to effect service under CPR r.7.5 and whether those steps were reasonable differs, depending on whether one is dealing with an application for an extension of time under CPR r.7.6(3), or an application for an extension of time for service in a case where that rule is applied by analogy. In principle, I consider that the relevant period should be the same, although, when the court is considering whether the behaviour in question was reasonable, it may expect a greater level of proactivity on the part of the legal representatives of a party facing a deadline where the time for service has already begun to run before that party lodges the unsealed claim form with the court. If a rule of the CPR is applied to certain other situations by analogy, one would expect its language and its requirements to be interpreted and applied consistently across the board.

The distinction between the planning cases and a case such as this (which the Judge acknowledged) lies in the fact that the time for service of a claim brought under section 288 TCPA is not dictated by the date of issue of the claim form, but by a practice direction: PD 54D, paragraph 4.11. This provides that the claim form must be served within the time limited by the relevant enactment for making a claim for planning statutory review. That time may start to run even before the claimant knows that they have a claim; for example, if the target of the challenge is a planning decision taken by the Secretary of State, the six weeks for making a claim under section 288 begins on the day after the decision was taken, not the day after the decision is conveyed to the claimant (see section 288(4B)(c) TCPA). Because the time for making the claim coincides with the time allowed for service, in cases of planning statutory review the six weeks for service will have started running before the claimant files the claim form with the court. The parties would know this. Thus it is foreseeable from the outset that any delay by the court office in issuing the claim form may mean that the prescribed period for service has expired by the time the claimant receives the sealed claim form, even if (as in Rogers itself) the claim form was lodged with the court office in good time.

The leading judgment in Rogers was delivered by my Lord, Coulson LJ. As he explained, it was established in R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355; [2022] 1 WLR 2339 (“Good Law”) that CPR r.7.6 applied by analogy in claims for extensions of time to serve a claim for judicial review, and that approach had subsequently been adopted in numerous planning cases at first instance. At [38] he distilled four principles from those authorities, the third of which was that, following Good Law, CPR r.7.6 applies by analogy to applications to extend the period for service of a claim for planning statutory review under section 288 TCPA. Thus he said at [38](d) that where the relevant period for service started to run before the claim form had been issued, the court must consider all the steps taken up to the expiry of that period. Events after the expiry of the period are strictly irrelevant to the question whether the claimant took all reasonable steps to serve within the period, but may shed light on what happened or did not happen during the period, and could be relevant to the overall exercise of the court’s discretion.

It was in that specific context, Mr Fry submitted, that Coulson LJ adumbrated at [43] what taking all reasonable steps to effect service within the time limit would require in a planning case, including chasing the court office for the documents and reiterating clearly when precisely the time period for service expired. By contrast, in a standard case, the solicitors would not know when the time for service expired until they were aware of the date when the claim form was issued. Here, they had no knowledge that a claim form had been issued, let alone when, until they received it. By then it was too late to take any steps to serve it because the time for doing so had already expired.

Mr Fry drew support for these submissions from a passage at [35] and [36] of Rogers where Coulson LJ addressed the first instance decision in Walton, [2022] EWHC 2073 (Ch), in which the judge had said at [51] that the taking of reasonable steps under CPR r.7.6(3)(b) had to be judged only once the sealed claim form was in the possession of the claimant. Although Coulson LJ acknowledged that that dictum appeared on its face to be inconsistent with the planning cases which followed and applied Good Law, he said there was no inconsistency, because in a standard service case such as Walton the four month period for service does not start until the issue of the claim form. In that situation it was “perhaps easy to see why the deputy judge (in Walton) focused exclusively on the steps taken following issue.”

On the face of it, that passage is helpful to Mr Fry. However, it must be noted that Coulson LJ himself had doubts about the correctness of focusing exclusively on the steps taken following issue, even in a standard case. In a footnote to the sentence I have just quoted, footnote 2, he said so in terms, expressing agreement with an earlier observation of the judge in Walton that it was difficult to see why there would be any policy reason to prevent an application for an extension of time being made where the sealed claim form was not in the claimant’s possession.

There is no reason to confine what is said in that footnote to cases where the period for service starts to run before the claim is issued. Although in many standard cases, unlike the planning cases, the claimant and their solicitors will not be aware of when the four month period began to run until they receive the sealed claim form, they may be put on notice that the four months has started or may have done so, and in that situation there is no justification for complacency. Once the case reaches a point where there is no impediment to issue and yet the claim form is not received, there will be a foreseeable risk that the claimant or their solicitor might receive it too late to be able to serve it in time. The longer the time that elapses after the point where there is no impediment to issue, the higher that risk will be. A reasonable person in that situation would seek to find out whether the claim form had been issued and, if it had, whether it had been sent out to him, and if so, when. In cases where the limitation period has expired and so the situation cannot be cured by bringing fresh proceedings, it is all the more imperative to seek answers to those questions and to chase the court office if they are not forthcoming.

I can well understand why Coulson LJ used the guarded terms that he did when seeking to reconcile the approach of the judge at first instance in Walton with the approach in the planning cases that followed Good Law, and I consider that he was right to question the correctness of that approach in footnote 2. The question whether the restrictive approach was the right approach did not arise in the appeal in Walton because the backdating of the stamp established that the claim form had in fact been served in time.

It seems to me that there is no principled basis for distinguishing between cases in which CPR r.7.6 is applied directly and those in which it is applied by analogy when it comes to considering what is meant by the taking of “reasonable steps to effect service” within whatever the prescribed period for service might be. The fact that the sealed claim form came into the claimant’s possession after the time limit under CPR r.7.5 had expired is plainly a relevant factor in the exercise of judicial discretion, and it may well be a very important one in some standard cases (especially if there was nothing to put the claimant or their solicitors on notice that the claim form might have been issued), but that does not and should not preclude the court from inquiring fully into how that state of affairs came about.

Although a person cannot serve a claim form until it is in his possession, the attempts he made to obtain it (in order to be able to serve it) are plainly relevant to the question whether he has taken all reasonable steps to serve it in time. It is therefore wrong in principle in any case to focus exclusively on events after the claim form has been issued, and a fortiori it is wrong to focus exclusively on events after it has come into the possession of the person responsible for service. The entire background history is relevant.

The Judge in the present case decided, rightly in my view, that events prior to the date of issue were relevant to an assessment of what took place after that date. He pointed to the exceptional delay of over a year following the sending of the unissued claim form to the CMCC in December 2022 and the “desultory correspondence” concerning the Help with Fees application, including two lengthy periods where there was little or nothing done to progress the issuing of the claim form [33]. Against that background, he considered the behaviour of the solicitors once they knew the appropriate fee had been paid and a claim number assigned. He found that the fact that they were unaware that the claim form had been issued did not justify inactivity on their part or leave them with no reasonable steps to take. He found, in summary, that they had done too little to chase up the CMCC to send out the claim form. He said that the principle that a claimant cannot safely sit back and do no more was a salutary one [36].

I agree. The Judge was entitled to find that the solicitors bore a significant responsibility for the fact that there was such a lengthy delay in the issue of the claim form after the unsealed document had arrived in the court office on the very last day of the limitation period. True it is that if the letter of 2 April 2024 had arrived much sooner than it did, and the solicitors had served the claim form on 13 April, that service would have been effective, and in practical terms the Appellant would have benefited from a delay in the commencement of proceedings equivalent to half the time allowed under section 11 of the Limitation Act for bringing a claim for personal injuries. But the fact that in other circumstances the delay after December 2022 might have turned out to the Appellant’s advantage does not excuse her solicitors for allowing the court office to take as long as it did to process the payment of the Appellant’s contribution towards the fees.

Once that obstacle to issuing the claim form was finally overcome, the solicitors should have been far more proactive, especially given the expiry of the limitation period and the background of extreme delay. They should have expected to receive the claim form at the very latest before the New Year. They did nothing to find out whether it had been issued and if so, what had become of it; instead, they were only prompted to do anything by the letter from the court of 30 January 2024, which was obviously written by someone who was unaware that the fees had been paid and that the claim form had been issued. Even then, they took the best part of a month to respond to that letter with the evidence of payment, and they still made no inquiry as to whether the claim form bearing the claim number allotted on 12 December 2023 had been issued.

Contrary to Mr Fry’s submission, there was nothing Kafka-esque about requiring the solicitors to take reasonable steps once they knew that all preconditions to issue had been satisfied and therefore were on notice that the claim form might have been issued and, for whatever reason, might not have been sent out. It may well be that there was an assumption by the solicitors when they received the email of 2 April 2024 that the claim form had only just been issued, but that was a dangerous assumption to have made, and it turned out to be wrong.

For all those reasons the Judge made no error in his approach to the evaluation of the reasonableness of the solicitors’ behaviour. He reached a conclusion which in my view was the only realistic conclusion available to him on the evidence. This was not a case in which it would have been appropriate to grant an extension of time. The third ground of appeal, too, must fail.