Vinos v Marks & Spencer Plc

After the prescribed period for serving a claim form has expired, the court may extend time only if the conditions in rule 7.6(3) of the Civil Procedure Rules are satisfied. The general powers to extend time or remedy procedural errors cannot override that specific restriction.

The overriding objective assists the interpretation of the rules but does not permit the court to disregard clear and mandatory language. The merits of an individual claim therefore cannot create a procedural power which the rules withhold.

The claimant issued a personal injury claim shortly before the limitation period expired. His solicitors served the claim form nine days after the four-month period prescribed by rule 7.5 of the Civil Procedure Rules. Their only explanation was oversight, and the ensuing application to extend time was also made after the service period had expired.

The district judge refused an extension and set aside service. His Honour Judge McDowall dismissed the claimant's appeal, holding that the conditions in rule 7.6(3) were not satisfied and that the court consequently had no discretion. The claimant appealed to the Court of Appeal, relying principally on the overriding objective and rule 3.10. The central issue was whether those general provisions conferred power to extend time despite the specific restriction in rule 7.6(3).

1. Appeal dismissed unanimously. May LJ held that the words “only if” in rule 7.6(3) of the Civil Procedure Rules restrict the power to extend time after expiry to the stipulated circumstances. The court had not been asked to serve the claim form, and the claimant had not taken all reasonable steps but been unable to serve it. His solicitors had merely overlooked the deadline. The court therefore had no power to grant an extension.

2. Rule 3.1(2)(a) did not assist because its general power to extend time applies except where the rules provide otherwise. Rule 7.6(3) expressly provided otherwise. Nor could rule 3.10 be used to characterise the required extension as the correction of a procedural error. The substance of the relief sought remained an extension of time, and general words could not override the specific restriction.

3. The overriding objective did not permit the court to give clear provisions a meaning they could not bear or to ignore their plain meaning because the individual claim appeared deserving. Expedition is itself an important feature of the overriding objective. A system under which a claimant who issues near the limitation deadline and then fails to comply with the service deadline loses the claim is not inherently unjust.

4. May LJ explained that the discussion in Amerada Hess v Rome and Others could be read in two ways. To the extent that it meant that failure to satisfy rule 7.6(3) left the court without a discretion under rule 3.10, that interpretation was correct. It was unnecessary to decide how any discretion would operate because the statutory conditions were not fulfilled.

5. Peter Gibson LJ agreed. Rule 7.6 constituted a specific sub-code governing extensions of the time prescribed by rule 7.5. The ordinary principle that general words do not derogate from specific words prevented either rule 3.1(2)(a) or rule 3.10 from overriding its unambiguous restrictions. The appeal was dismissed with costs.

1. Court of Appeal (Civil Division): The claimant's appeal was dismissed. The court affirmed that there was no power to extend the expired period for service because rule 7.6(3) of the Civil Procedure Rules was not satisfied.

2. Ilford County Court, His Honour Judge McDowall: The claimant's appeal from the district judge was dismissed. Permission for a second appeal was granted.

3. Ilford County Court, District Judge Thomas: The claimant's application to extend time was dismissed. The defendant's application to set aside service was granted.