Hashtroodi v Hancock
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson |
| Judgment Date | 25 May 2004 |
| Neutral Citation | [2004] EWCA Civ 652 |
| Docket Number | Case No: B1/2003/2525 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 2004 |
[2004] EWCA Civ 652
Lord Justice Thorpe
Lord Justice Dyson and
Mr Justice Bennett
Case No: B1/2003/2525
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Deputy Master Eastman)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Allan Gore QC and Mr Daniel Tobin (instructed by Messrs Bindman and Partners) for the Respondent
Mr Christopher Purchas QC and Mr Steven Snowden (instructed by Messrs Blake-Turner and Co) for the Appellant
This is the judgment of the court.
This is an appeal by the defendant from the decision of Deputy Master Eastman who on 13 June 2003 (a) refused to set aside a "without notice" extension of time for service of the claim form which the claimant had been granted by Master Tennant, and (b) dismissed the defendant's application that the action should be struck out on the grounds that the claim form had not been properly served even within the extended time for service. In view of the importance of the first decision, the Master of the Rolls directed that the appeal should be heard by the Court of Appeal instead of the High Court.
The proper interpretation of CPR 7.6(2)
The issue raised by the appeal against the first decision concerns the principles by which the court should determine whether to extend the time for service of a claim form where the application is made within the period for serving the claim form specified by CPR 7.5 and the claim has become statute-barred within that period. There appears to be no authority on this issue.
CPR 7.5(2) provides that "the general rule is that a claim form must be served within 4 months after the date of issue". CPR 7.6 provides:
"(1) The claimant may apply for an order extending the period within which the claim form may be served.
(2) 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 had been made under this rule, within the period for service specified by that order.
(3) 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;
(b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so;
(c) in either case, the claimant has acted promptly in making the application."
Before 1962, the power of the high court to extend the validity of a writ was governed by a rule (RSC Ord 8 r 1) which provided that no writ should remain in force for more than 12 months, but that:
"…the plaintiff may, before the expiration of the 12 months, apply to the court or judge for leave to renew the writ; and the court or judges if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original…. writ of summons be renewed for six months…."
In 1962, the previous Ord 8 r 1 was replaced by a new Ord 6 r 8 which remained until the CPR came into force. Ord 6 r 8 provided that a writ was valid in the first instance for 12 months beginning with the date of its issue, and
"(2) where a writ has not been served on a defendant, the court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time….as may be specified in the order, if an application for an extension is made to the court before that day or such later day (if any) as the court may allow."
It was no longer a condition of allowing an extension of the validity of the writ that the court should be satisfied that reasonable efforts had been made to serve, or that there was some other good reason for granting an extension of time.
Ord 6 r 8 generated a great deal of litigation. In what circumstances should the court extend the time for service of a writ? The authorities and principles were reviewed by the House of Lords in Kleinwort Benson Ltd v Barbrak Ltd [1987] 1 AC 597. Their lordships decided that Ord 6 r 8 had to be construed against the background of the earlier rule, and that:
"..there must be implied in the new rule, as a matter of construction, a condition that the power to extend shall only be exercised for good reason": per Lord Brandon at p 622C-D.
As for what could properly be regarded as amounting to a "good reason", Lord Brandon said (p 622H) that it was not possible to define or circumscribe the scope of that expression. "Whether there is or is not good reason in any particular case must depend on all the circumstances of that case, and must therefore be left to the judgment of the judge". He added that the decision whether an extension should be allowed or disallowed was a discretionary one, and that, in exercising the discretion, the judge was entitled to have regard to the balance of hardship. In Waddon v Whitecroft-Scoville Ltd [1988] 1 WLR 309, the House of Lords said that normally the showing of good reason for failure to serve the writ during the original period of its validity would be a necessary step to establishing good reason for the grant of an extension: see per Lord Brandon at p 314G-H.
There were "intricate and numerous" authorities under Ord 6 r 8: see Adrian Zuckerman's Civil Procedure p 180. Thus, for example, it was held that a clear agreement between the parties that service should be deferred was a good reason for extending time; whereas the mere fact that negotiations were proceeding was not a good reason.
Mr Christopher Purchas QC submits that the case law under Ord 6 r 8 still holds good, and that it is a necessary (but not sufficient) condition for the grant of an extension of time, where the application is made in accordance with CPR 7.6(2), that there is a good reason for the claimant's failure to serve within one of the periods specified in CPR 7.6(2) ("the specified period"), and therefore a good reason for an extension of time. The existence of a good reason is not a sufficient condition because the power to grant an extension of time is discretionary, and it must be exercised in accordance with the overriding objective identified in CPR 1.1. Mr Purchas points out that, although the words "good reason" did not appear in the 1962 version of Ord 6 r 8, nevertheless they were implied into the rule. For the same reason, he submits, these words should be implied into CPR 7.6(1) and (2), and the old case law should be applied. There should be no difference, since the court would have had to have regard to the interests of justice in the pre-CPR era, just as it is now explicitly required to do by CPR 1.1.
We cannot accept the full breadth of these submissions. The starting point is that the CPR are a "new procedural code" ( CPR 1.1(1)) . They contain many detailed rules, and the court is required to give effect to the overriding objective when it interprets any rule: CPR 1.2(b) . In Biguzzi v Rank Leisure plc [1999] 1 WLR 1926, 1934G, Lord Woolf MR said:
"The whole purpose of making the CPR a self-contained code was to send the message which now generally applies. Earlier authorities are no longer generally of any relevance once the CPR applies."
To similar effect, May LJ in Godwin v Swindon BC [2002] EWCA Civ 1478, [2002] 1 WLR 997 at para [42] said:
"…it is not generally helpful to seek to interpret the Civil Procedure Rules by reference to the rules which they replaced and to cases decided under former rules."
There have been instances where this court has derived assistance from cases decided under the former rules when interpreting the CPR. Thus in Banks v Cox (unreported, 17 July 2000, Court of Appeal (Civil Division) Transcript No 1476 of 2000), Morritt LJ said that the principles reflected in Ladd v Marshall [1954] 1 WLR 1489 remain relevant to any application for permission to rely on further evidence "not as rules but as matters which must necessarily be considered in an exercise of the discretion whether or not to permit an appellant to rely on evidence not before the court below": see para 41. The court adopted and applied the statement by May LJ in Hickey v Marks (unreported, 6 July 2000 Court of Appeal (Civil Division)):
"The principle for the future will be that, since the Civil Procedure Rules are a new procedural code, the former body of authority will not apply, although of course the intrinsic persuasiveness of all relevant considerations, including, if they arise, those which were considered persuasive under the former procedure, will be capable of contributing to a just result."
Other examples are Stewart v Engel [2000] 3 All ER 518, 525F-H, and Garratt v Saxby [2004] EWCA 341, para [18], where I said:
"Although it has been said on a number of occasions that decisions on pre-CPR procedural rules are not binding for the purpose of interpreting the CPR, there are circumstances in which they may be of considerable persuasive force."
But it should usually be possible to interpret the CPR without recourse to case law under the former rules. If the old case law were to be routinely invoked, the fundamental principle that the CPR is a self-contained procedural code would be undermined. In our judgment, it is unnecessary to construe CPR 7.6(1) and (2) as importing the case law that was developed for the interpretation of Ord 6 r 8, and it would be wrong to do so. It is true that the threshold condition of "good reason" was implied into...
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