Case Alert - [2018] EWHC 346 (QB)

Court grants extension of time to serve claim form out of the jurisdiction

The claimant experienced delays in effecting service of the claim form on the defendants, including a hospital in the United Arab Emirates. The Foreign Process Section ("FPS") of at the Royal Courts of Justice advised the claimant that service in the UAE can take between 6 and 12 months, or more, and that an extension of time to serve should be sought (under CPR r7.6). Two extensions of time were granted but the second one was subsequently set aside. The claimant appealed against that decision and that appeal has now been allowed.

The defendant referred to Foran v Secret Surgery, in which the judge held that an extension of time in a service out of the jurisdiction case should not have been granted. The judge in that case said that the 6 month period for service out was generous, but in this case Foskett J commented that "I respectfully question whether the 6-month period allowed for service outside the jurisdiction does cater in all circumstances for the difficulties of effecting service through the FPS process". Furthermore, the claimant's solicitors in Foran had been criticised for not pursuing matters with the FPS to see how service could be expedited, but the judge in this case said that the FPS's website (at least now) makes it clear that such enquiries are "obviously discouraged and, frankly, futile". Furthermore, where, as in the UAE, alternative means of service are not ordinarily possible, there would be no point in making such enquiries.

A further issue taken into account in this case was the total lack of communication by the defendants. The judge commented that "in my view, the complete failure of the Defendants to respond at all to these various communications ought to weigh heavily against the otherwise important consideration of the expiry of the limitation period". The defendant's insurers had initially advised the defendant not to respond to the claimant and the judge noted that "it does appear that the hospital itself did react properly to the communications from the Claimant's solicitors and, perhaps, assumed that the insurers would acknowledge those communications. That would, of course, have been the anticipation of all parties if an insurer in the UK was the recipient of communications such as these from an insured". Accordingly, the defendant had not advised the claimant that a notarised power of attorney authorising the defendant's solicitors to act was first required under UAE law, before correspondence could be entered into. The judge was critical of that stance, saying that it had hampered the claimant in putting its case together: "True it is that the Claimant's solicitors did not obtain any advice about this, but it was not unreasonable, in my view, to have anticipated some kind of communication from the insurers and/or lawyers along the lines I have indicated. The insurers and/or lawyers only had to perform an Internet search and, had they not known it before, they would have realised that the Claimant's solicitors were a well-known firm of English lawyers".

COMMENT: Prior caselaw has established that defendants generally do not have to cooperate with a claimant to help with the service of the claim form. However, here, the issue was that the lack of cooperation prevented the claimant from formulating its case and drafting the claim form (which in turn impacted on its ability to serve before the expiry of the limitation period). It is a fairly generous decision for the claimant, but the judge may have been influenced to some degree by the nature of the claim, having stated that the prospect of the claimant having to apply to the court to exercise its discretion to allow the otherwise time-barred claim to proceed was not "an attractive proposition when the effective, lifetime interests of a seriously disabled child are in issue". This case might be contrasted with that of Euro-Asian Oil v Abilo, in which Burton J confirmed that "waiting, certainly waiting for so long as to take up all or the majority of the generous periods of time for service of the writ, in seeking to persuade the proposed Defendants to instruct solicitors or to put forward a substantive defence or to make an offer in settlement, is not to be regarded as a good reason, but it is indeed rather to be treated as a bad reason or as negligence or incompetence; and the obtaining of further information …. before finalising Particulars of Claim and/or service of the Claim Form would be regarded as a serious error of judgment" (although there had been no time bar issue in that case).