Hyfield Estates Ltd v Thomas Eggar and Others
| Jurisdiction | England & Wales |
| Judge | Judge Peter Hughes |
| Judgment Date | 22 October 2015 |
| Neutral Citation | [2015] EWHC 3773 (QB) |
| Court | Queen's Bench Division |
| Date | 22 October 2015 |
| Docket Number | Case No: QB/2015/0287 |
[2015] EWHC 3773 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Peter Hughes QC
(Sitting as a Judge of the High Court)
Case No: QB/2015/0287
No representation available
(As Approved)
This is an appeal against the order of Master Kaye QC of 4 June 2015 whereby he refused the claimant's application to extend time for service of the claim form on the third defendant pursuant to CPR 7.6(3).
Permission to appeal was granted by Dove J on 24 September 2015.
The background to the case, which for these purposes I can state relatively simply, is as follows. The appellant is a property company that provides finance for property developers. It alleges that it was induced to enter loan agreements with a number of property companies by dishonest means at various times between 2004 and 2007. There are in total nine defendants involved in the litigation. The third defendant, Cadmus Corporate Finance Ltd ("CCF"), acted as a facilitator for the transactions. The fourth and fifth defendants were at the material times officers or directors of CCF.
CCF was dissolved on 16 October 2012. It is accepted that the latest date from which time runs in respect of the claim against the company is 28 November 2008. The claim form was issued on 26 November 2014, just within the six-year limitation period. It could not though be served on CCF as to do so the company needed to be restored to the register. Application for this to be done was not made on behalf of the appellant by its solicitors until 3 March this year. The application was served both on the Treasury Solicitor and on the Registrar of Companies. The four-month period allowed under the Civil Procedure Rules to serve the claim expired on 26 March. Finally, on 21 April the ex post facto application to extend time for service was made and came before Master Kaye.
Turning to the Civil Procedure Rules, the basic rule is that set out in rule 7.5. It governs the time for a method of service of the claim form. It provides that service within the jurisdiction must take place within four months of the date of issue. Rule 7.6 deals with extension of time for service. It provides so far as is material to this case as follows:
"(1) The claimant may apply for an order extending the period for compliance with rule 7.5.
(2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made –
(a) within the period 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.
(3) If the claimant applies for an order to extend the time for compliance 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 –…
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
(c) … the claimant has acted promptly in making the application."
CPR 7.6 (3) therefore provides two hurdles for a claimant to surmount. The first is the need to show that all reasonable but unsuccessful steps have been taken to comply with rule 7.5 and the second that the application has been made promptly.
Master Kaye QC was prepared to accept that the appellant was able to get over the second hurdle, but decided that it fell at the first. What he said as to that is to be found at paragraph 4 of his judgment:
"What I am concerned with, however, is whether the claimant had taken all reasonable steps to comply with 7.5. It had been unable to do so. It is perfectly clear that the claimant sought to serve on the third defendant's old office, but they were unable to do so. Of course they were unable to do so because the third defendant no longer existed. That was obvious to them on 24 November. It was obvious to them on 24 November that the third defendant needed to be restored to the company registry. There is no explanation, save that the claimant is a small company and I understand Mr Sillett to be speaking for the claimant. There is no...
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Monica Wendy Instone v Prosecco (Leeds) Ltd
...fund that sum. 47 Mr Jamieson, without referring to it in detail drew my attention to a decision of HH Judge Peter Hughes QC in Hyfield Estates v Thomas Eggar [2015] EWHC 3773 (QB). That case has some similarities with the present. It involved a claim against 9 Defendants which was issued o......
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Late Service of the Claim Form and Failing to act promptly in seeking an Extension of Time for Service of Claim = not good news for Claimant
...Estates Ltd -v- Eggar [2015] EWHC 3773 (QB) highlights the dangers of late service of a claim form and serves as a warning to claimants that they should not leave vital procedural steps with regards to service of the claim form to the last minute. Especailly where, as here, the case was com......