Chabba v Turbogame Ltd

Under the CPR as then drafted, the two-month period for serving a claim form in proceedings under Part II of the Landlord and Tenant Act 1954 did not alter the four-month period in CPR rule 7.6(2)(a) for applying to extend time. An application made within four months was therefore not subject to the restrictive conditions in rule 7.6(3), and the court retained its general case-management power under rule 3.1(2)(a).

On the facts, justice required an extension where the delay was short, the application prompt, the court’s guidance was misleading, and refusal would deprive the tenant of statutory renewal protection. The position was expected to change when the amended rule incorporated the two-month period into rules 7.6(2) and (3).

The tenant of shop premises sought a new tenancy under Part II of the Landlord and Tenant Act 1954. The claim form was issued within time but served after the special two-month service period in CCR rule 43.6(3). The tenant applied for an extension within four months of issue.

A district judge granted the extension. HH Judge Appleton allowed the landlord’s appeal, holding that CPR rule 7.6(3) applied and left no discretion because neither statutory exception was available. The tenant appealed to the Court of Appeal. The central questions were whether rule 7.6 applied and, if so, whether the relevant application period was two or four months.

1. Appeal allowed. The district judge’s order was restored and time was extended for service of the claim form.

2. Proceedings under Part II of the Landlord and Tenant Act 1954 formed part of the CPR’s inclusive procedural code. CCR rule 43.6(3) disapplied CPR rules 7.5(2) and (3) only for the purpose of the service period. CPR rule 7.5(1), and CPR rule 7.6, continued to apply.

3. The reference in CPR rule 7.6(2)(a) and (3) to the period for service specified by rule 7.5 meant the periods expressly specified in CPR rule 7.5: four months for service within the jurisdiction and six months for service out of the jurisdiction. It was impermissible to read the two-month period in CCR rule 43.6(3) into rule 7.5.

4. Because the application was made within four months, CPR rule 7.6(2)(a) applied and rule 7.6(3) did not. The court could therefore exercise its power under CPR rule 3.1(2)(a). The judge below had wrongly concluded that the restrictive words only if removed the discretion.

5. Applying the discretion, the court considered the misleading court-issued guidance, the absence of any intention to disregard the rules, the short delay, prompt corrective action, compliance in other respects, the absence of material prejudice, and the tenant’s loss of statutory renewal protection if relief were refused. Their cumulative effect justified an extension under the overriding objective.

6. The court cautioned that strict compliance with the CPR remained imperative. Once the amended rule took effect, its modification of CPR rules 7.5(2) and (3) would incorporate the two-month period into CPR rule 7.6(2) and (3), making late service likely to have fatal consequences.

The respondent was ordered to pay the appellant’s costs, assessed in the Court of Appeal at £3,198.49, with liberty to apply.

• Court of Appeal (Civil Division): Chabba v Turbogame Ltd [2001] EWCA Civ 1073 — appeal allowed; district judge’s extension restored.
• Reading County Court: HH Judge Appleton allowed the landlord’s appeal and set aside the district judge’s extension.
• County Court: the district judge extended time for service of the claim form to cover the date of actual service.