Hoddinott v Persimmon Homes (Wessex) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson |
| Judgment Date | 21 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1203 |
| Docket Number | Case No: 2007/0568 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 2007 |
[2007] EWCA Civ 1203
Sir Anthony Clarke Mr
Lord Justice Dyson and
Lord Justice Jacob
Case No: 2007/0568
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION BRISTOL DISTRICT REGISTRY
District Judge Daniel
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr William Batstone (instructed by Messrs Forrester & Forrester) for the Appellants/Claimants
Mr Gordon Exall (instructed by Davies and Partners Solicitors) for the Respondent/Defendant
Hearing date: Wednesday 31 October 2007
Judgement
this is the judgment of the court.
The claimants appeal against the decision of District Judge Daniel made on 30 January 2007 whereby he set aside the order of District Judge Rowe made on 13 September 2006 extending the time for service of the claim form to 22 November 2006 and struck out the claim. The claimants appeal with the permission of Lewison J, who referred the appeal to this court because he considered that there was or may be a conflict between some of the relevant authorities. Once again, this court is faced with an appeal as to the application of the CPR provisions relating to service of a claim form.
The claim
The first two claimants are farmers. They are directors of the third claimant. The defendant is a house-builder. The first claimant owns and the third claimant farms land at Lickhill Farm, Calne, Wiltshire (“the land”). A deed of transfer was executed between the first and second claimants and the defendant on 29 March 1999 pursuant to which the defendant was authorised to enter the land in order to construct a sewer and thereafter to reinstate the land. The defendant entered the land for that purpose in about October 1999. It is the claimants' case that the defendant did not reinstate the land properly or make good the damage caused as soon as reasonably practicable thereby causing them to suffer loss and damage.
On 22 May 2006, the claimants issued a claim form in the High Court. They claimed damages for trespass to and damage to the land and/or for nuisance and/or negligence and/or breach of the terms of the deed of transfer. Particulars of claim were not attached to the claim form.
The course of the litigation
The claimants were represented by solicitors, Forrester and Forrester. Their case was handled by Matthew Paterson, a partner in the firm. The time for service of the claim form expired on 22 September 2006: CPR 7.5(2). On 13 September, without notice to the defendant Mr Paterson made an application pursuant to CPR 7.6(2) to extend the time for service of the claim form to 22 November 2006. CPR 7.6(4)(b) expressly provides that such an application may be made without notice.
In the application notice, he gave the following reasons why the claimants were seeking an extension of time:
“There is urgency to justify this matter being dealt with Ex Parte – see paragraph 2 to the witness statement filed herewith and pursuant to CPR 7.6(4)(b).
An extension of time will enable the Claimants' claim to be fully particularised and for any resulting litigation to be conducted more economically and expediently – see paragraph 26 to the witness statement filed herewith.
Full particulars of the claim will promote the chances of the claim being settled without recourse to a trial, for I intend to send a detailed letter of claim to the Defendant as soon as possible and to deal with this matter in a protocol friendly way – see paragraph 28 to the witness statement filed herewith.”
The application was supported by a witness statement by Mr Paterson. At para 2, he said:
“The claim form was issued on 22 May 2006 and so must be served by 22 September 2006 unless the court accedes to the application and makes an order extending time pursuant to CPR rule 7.6(2). As I shall explain, the reason for the application is that the Claimants are not going to be in a position to serve fully particularised particulars of claim by 22 September 2006. If the court decides not to make an order extending time then the Claimants will have no alternative but to serve the claim form, together with such particulars of claim as can be prepared, by the deadline of 22 September 2006. The application is therefore urgent and I respectfully ask for it to be given priority by the court. The application is made without notice, as rule 7.6(4)(b) allows, and I ask for it to be dealt with at a hearing at which I intend to instruct Counsel to attend.”
He then described the nature of the dispute. He stated that as early as 3 July 2002, the claimants had obtained a quotation for the replacement of the topsoil in the sum of £218,295. He referred to the expert's report by Helen Cooper which had been obtained by the defendant in June 2004. Mr Paterson said that his instructions were that the restoration works described in Ms Cooper's report were insufficient to restore the land to the condition it had been in before it had been disturbed by the defendant's works. Accordingly, the claimants had decided to instruct another expert.
Sheila Royle was instructed on 25 July 2006. At para 21 of his statement, Mr Paterson gave several reasons why she was not instructed earlier. These included the time taken to obtain all the information which it was thought Ms Royle would need. Ms Royle's draft report was received by Mr Paterson on 1 September. At the time of the application to extend the time for service, the report was still in draft form. There was no estimate of the cost of the remedial work that was being proposed by her. Moreover, Mr Paterson said that it had also not been possible to instruct an expert rural surveyor to advise on the effect of the remedial works on the claimants' farming business and the losses that they were likely to suffer.
Thus it was that Mr Paterson said:
“26. Without an assessment of the cost of the remedial works and the losses that will be caused to the Claimant's business, it will not be possible to produce particulars of claim that will promote settlement of the claim. As the court will have seen, it seems likely that liability will not be disputed and that the only issue will be as to the proper assessment of the Claimants' loss. I decided that serving particulars of claim without the requisite figures would be to risk incurring litigation costs unnecessarily.
27. I also decided that it was not appropriate to seek to agree an extension of time with the Defendant. There has not yet been any contact between my firm and the Defendant or any insurers or solicitors instructed by it and I am not aware of any such professionals having been instructed. I concluded that the chances of reaching agreement so as to secure the Claimants' position by the deadline of 22 September 2006 were remote.”
District Judge Rowe acceded to the application on 13 September and extended the time for service to 22 November. On the following day, Mr Paterson wrote to the defendant notifying it that the claim form had been issued and enclosing a copy of the claim form “for information purposes only”. On 20 September, a copy of Ms Royle's finalised report was sent to the defendant.
On 2 October, the defendant issued an application to set aside the order of 13 September on the grounds that the claimants did not have a good reason to obtain an extension of time for service of the claim form. On 5 October, the parties were notified by the court that the application would be heard on 21 December. On 21 November, the claim form and particulars of claim were served on the defendant.
On 28 November, the defendant's solicitors filed an acknowledgement of service. The form contains three boxes. They ticked the box “I intend to defend all of this claim”. They did not tick the box “I intend to contest jurisdiction”.
The relevant CPR provisions
CPR 7.5 provides:
“(1) After a claim form has been issued, it must be served on the defendant.
(2) 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 has been made under this rule, within the period for service specified by that order.”
15. CPR 11 provides:
“(1) A defendant who wishes to—
(a) dispute the court's jurisdiction to try the claim; or
(b) argue that the court should not exercise its jurisdiction,
may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.
(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.
(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court's jurisdiction.
(4) An application under this rule must—
(a) be made within 14 days after filing an acknowledgment of service; and
(b) be supported by evidence.
(5) If the defendant—
(a) files an acknowledgement of service; and
(b) does not make such an application within the period specified in paragraph (4),
he is to be treated as having accepted that the court has jurisdiction to try the claim.
(6) An order containing a declaration that the court has no jurisdiction or...
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