Totty v Snowden (Hewitt v Wirral and West Cheshire Community NHS Trust)

Where a claim form has been served within the prescribed period, the court retains power to extend time for serving particulars of claim. The exceptional restrictions governing extensions for service of a claim form do not apply by implication to particulars of claim.

Particulars of claim are separate from the claim form. A claimant who cannot serve them within the period allowed as of right must seek an extension under the court’s general case-management powers. The discretion must be exercised in accordance with the overriding objective, taking the claimant’s non-compliance and the need for expedition into account.

These conjoined appeals concerned claim forms served within four months of issue but particulars of claim which were either served late or did not comply with the prescribed requirements.

In Totty v Snowden, the District Judge remedied the late service under the court’s case-management powers. His Honour Judge Grenfell upheld that decision. The defendant appealed. In Hewitt v Wirral and West Cheshire Community NHS Trust, His Honour Judge David Marshall Evans QC reversed the District Judge and held that the court had no power to extend time. The claimant appealed.

The common question was whether the restrictions governing extensions for service of a claim form also removed the court’s general discretion to extend time for serving particulars of claim.

1. The Court of Appeal unanimously dismissed the appeal in Totty and allowed the appeal in Hewitt. Kay LJ delivered the leading judgment. Chadwick LJ gave concurring reasons, and Peter Gibson LJ agreed with both judgments.

2. Per Kay LJ, particulars of claim are not an integral part of the claim form. Rule 7.4 treats them as separate documentation and permits them to be served after the claim form. Rule 16.8 reinforces that distinction by allowing a claim to continue without another statement of case after valid service of the claim form.

3. The exceptional restrictions in rule 7.6 apply expressly to extensions for serving a claim form. They do not refer to particulars of claim. Applying those restrictions by implication would require substantial alteration of the rule’s language and would leave a claimant seeking additional time for particulars to apply for an extension concerning a claim form already validly served.

4. Rule 7.4(2) nevertheless has practical effect. A claimant ordinarily has 14 days after service of the claim form to serve particulars as of right. If that period would extend beyond the final date for service of the claim form, the claimant loses the excess period as of right and must seek an extension under rule 3.1(2)(a).

5. The discretion must be exercised consistently with the overriding objective. The claimant’s failure to comply with rule 7.4 and the requirement that proceedings be handled expeditiously are relevant considerations. The defendant may also seek an order requiring particulars or, where justified, seek to strike out the claim.

6. Chadwick LJ added that a draconian abrogation of the general extension power would require clear and express language. Once the claim form has been served, the defendant knows of the proceedings and can invoke the court’s assistance. The policy supporting the strict regime for unserved claim forms therefore does not apply with equal force.

7. The Totty appeal was dismissed because the lower courts had correctly recognised the discretion and its exercise was not challenged. The Hewitt appeal was allowed and remitted to Liverpool County Court for the discretion to be exercised on further evidence.

• Court of Appeal: In Totty v Snowden, unanimously dismissed the defendant’s appeal. In Hewitt v Wirral and West Cheshire Community NHS Trust, unanimously allowed the claimant’s appeal and remitted the case to Liverpool County Court.
• Queen’s Bench Division, Leeds District Registry: His Honour Judge Grenfell dismissed the defendant’s appeal and upheld the District Judge’s conclusion that the court had discretion to remedy late service of particulars.
• Liverpool County Court: His Honour Judge David Marshall Evans QC allowed the NHS Trust’s appeal and held that the court had no discretion to extend time for service of particulars.
• District Judges: District Judge Giles granted relief in Totty. District Judge Jones refused to set aside service in Hewitt and directed service of compliant particulars.