Chare v Fairclough
| Jurisdiction | England & Wales |
| Judge | Mr Justice Treacy |
| Judgment Date | 20 January 2003 |
| Neutral Citation | [2003] EWHC 180 (QB) |
| Court | Queen's Bench Division |
| Date | 20 January 2003 |
[2003] EWHC 180 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Treacy
MR I EDGE (instructed by Robert Davies & Co of Warrington) for the CLAIMANT
MR R SLADE (instructed by Osborne Clarke of Bristol) for the SECOND DEFENDANT
Hearing dates : 20 TH JANUARY 2003
Approved Judgment
In this action the claimant is a widow. She sues the first defendant in negligence. He was the driver of a vehicle involved in a road traffic accident on 28 th June l997, in Saudi Arabia. The deceased, John Chare, was a passenger in the vehicle driven by the first defendant. He was killed in the accident. The second defendant was the first defendant's employer and is alleged to be vicariously liable for the first defendant's negligence.
The first defendant lives in this country. He was served with the statement of claim in March l999.
The second defendant is a Saudi Arabian telecoms business. In March, l999 the claimant's solicitor sent a draft statement of claim to the second defendant in Saudi Arabia and invited them to nominate English solicitors or an English address at which they would accept service. The second defendant's response was to decline and to say that the claimants must undertake service outside the jurisdiction pursuant to the Rules of the Supreme Court.
On 26 th October l999, Master Ungley gave permission to issue and serve a claim against the second defendant in Saudi Arabia. By Rule 7.5.3 a six month period for service applied taking the expiry date to 26 th April 2000. Master Ungley also ordered an acknowledgement of service to be filed 24 days after service.
At this stage a Mrs Mellon was handling the claimant's case. She remained in charge of the case until early May 2000, when she left the firm and a Mr Poyner took over.
In mid November l999, London agents for the claimant's solicitors lodged documents with the High Court Foreign Process Office for service through the Foreign and Commonwealth Office in Saudi Arabia. They, the agents, wrote to the claimant's solicitors saying, "You are advised to wait at least three months for the acknowledgement of service." That period would have taken matters forward to mid February 2000, still well within the six month period for serving the claim form.
Although Mrs Mellon remained in charge of the case until Mr Poyner took over in early May 2000, no evidence has been produced to show whether she did anything at all after November l999. All we know from Mr Poyner's first witness statement, paragraph 3, is that on taking over the file he, "noticed that confirmation of service of the proceedings was still awaited," and wrote to the Court Service on 9 th May 2000, pointing out that the three month period had "long expired" and asking the Foreign Process Section to "confirm the present position with regard to service of the proceedings in Saudi Arabia." By fax of l0th May 2000, the Foreign Process Section, with commendable speed, replied saying that a reminder had been forwarded to the Foreign Office.
The 20 th May 2000, came and went. That date is mentioned because it represents 24 days after the expiry of the time for service of the claim on 26 th April 2000, and thus represented the last date for filing and acknowledgement of service if the claim form had been served within the period. However, Mr Poyner took no further step until 20 th June 2000, when he wrote again to the Court Service in terms similar to those contained in his letter of 9 th May 2000. He has not exhibited the Court Service's response but his next letter dated 5 th July 2000, indicated that the Court Service, in fact, informed him that two reminders had been sent to the Foreign Office.
On 6 th July 2000, Mr Poyner applied without notice for an order to extend time for service of the claim form until 26 th October 2000. The application was supported by his first witness statement already referred to.
On l8th July 2000, Master Prebble granted the order. By then the three year limitation period for this action had expired.
As a matter of history, which does not affect the issues in this case, service was not effected until June 2002. A number of further applications for extensions pursuant to Rule 7.6.3 were made within the relevant time frames and allowed in the interim period.
On l2th July 2002, the second defendant applied to strike out or set aside service on the grounds that service was ineffective under Part 7, the initial extension by Master Prebble not having been validly granted.
On 9 th September 2002, Master Trench refused the application.
On llth November 2002, Keith J gave the second defendant permission to appeal.
I have reminded myself in dealing with this matter that my approach is to be governed by CPR Rule 52.11.3 and I have also reminded myself of the guidance given in Tanfern Limited -v—Cameron McDonald [2000] 1 WLR, 1311, 30–33. In particular, this is not a case where I should exercise a discretion afresh. I must find that the Master's decision was wrong.
I now turn to the relevant provisions in the Rule, namely Rule 7.6. Rule 7.6.l states:
"The claimant may apply for an order extending the period within which the claim form may be served."
Rule 7.6.2 sets out the general rule in these circumstances.
"The general rule is that an application to extend the time for service must be made (a) within the period for serving the claim form specified by Rule 7.5 or (b) where an order has been made under this rule within the period for service specified by that order."
Rule 7.6.3 lays down the procedure for granting an extension of time for service of the claim form after the end of the six month period which applies in this case by reason of Rule 7.5.3. The terms of Rule 7.6.3 are as follows:
"If the claimant applies for an order to extend the time for service of the claim form after the end of the period specified by Rule 7.5 or by an order made under this rule, the Court may make such an order only if (a) the Court has been unable to serve the claim form or (b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so and (c) in either case the claimant has acted promptly in making the application."
I note the clear wording that "the Court may make such an order," that is extend time, "only if," 3(a) or 3(b) plus 3(c) are satisfied.
It is common ground between the parties that the Court is required to take a strict approach to Rule 7.6.3 in the sense that the applicant for an extension of time has to satisfy the Court that he can bring himself within the criteria of sub paragraphs 3(a) or (b) and sub paragraph 3(c).
In the course of the hearing counsel and I considered two recent Court of Appeal decisions, Godwin -v—Swindon Borough Council [2001] EWCA Civil 1478 and Anderton -v—Clywd County Council (No 2) [2002] EWCA Civil 933. Ultimately both sides accepted, for the purposes of this appeal, that what needs to be considered is how Rule 7.6 and, in particular, Rule 7.6.3 applies to the circumstances of this case. Mr Edge for the claimant frankly indicated that he was not contending, as appears to have been contended in the skeleton placed before the Master, that Rule 6.9 could be relied on to rescue his position in the event that he could not satisfy Rule 7.6.3.
Mr Slade for the second defendant, the appellant, submits that this case involves a consideration of sub paragraphs 3(b) and (c). He submits that in relation to (b) the claimant fails to show that it has taken "all reasonable steps" in the absence of any evidence of activity on the case between mid November l999, and 9 th May 2002, and in the delays which elapsed between 9 th May 2002, and the application being made on 6 th July 2002. He says that once mid February 2002 was reached, there was a responsibility to act yet nothing was done. He says that given the terms of Rule 7.6.2, the general rule, and given the expiry date of 26 th April 2000, steps should have been taken.
Mr Slade goes on to submit in addition that the claimant cannot satisfy the requirement...
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