Cranfield & Anor v Bridgegrove Ltd.

The Court of Appeal considered the scope and interaction of CPR 7.6 (extension of time for serving a claim form) and CPR 6.9 (power to dispense with service). It held that the words in CPR 7.6(3)(a) that the court "has been unable to serve" include cases where the court has failed, through oversight or neglect, to serve the claim form within the four month period. The court further confirmed that the discretion under CPR 6.9 to dispense with service is exceptional and must not be used to circumvent the restrictions in CPR 7.6; when invoked retrospectively it is confined to truly exceptional cases (as discussed in Anderton and Wilkey), but remains available in pre-Anderton cases in narrowly defined circumstances.

Applying these principles to Cranfield, the court concluded that the failure to serve was principally the court's neglect, that the claimants acted promptly, and that extension of time under CPR 7.6(3)(a) was therefore properly granted below. The defendant's appeal was dismissed.

Background and procedural posture:

• The claimants were tenants who had received notices under section 25 of the Landlord and Tenant Act 1954; two claim forms were issued by Guildford County Court but were not served within the four month period because the court failed to dispatch the service copies from the court file.
• The claimants applied for an extension of time for service under CPR 7.6; an initial judge refused, but His Honour Judge Hull QC allowed the claimants' appeal in the county court. The defendant appealed to the Court of Appeal.

Nature of the application:

• The primary procedural relief sought was an extension of time for service of the claim forms (CPR 7.6). The case raised subsidiary questions about the scope of the court's power to dispense with service under CPR 6.9 and about the proper approach to cases where service has failed through court neglect.

Issues framed by the court:

1. Whether the phrase "has been unable to serve" in CPR 7.6(3)(a) requires an attempted but failed service, or whether it also embraces cases where the court simply failed to effect service through oversight or neglect.
2. The proper scope of CPR 6.9 and the circumstances in which the court may retrospectively dispense with service without undermining CPR 7.6.

Court's reasoning:

• The court rejected a narrow linguistic construction of "unable to serve" that would require an attempted but failed service. The Civil Procedure Rules should be read to avoid an unjust lacuna that would permit court neglect to deprive litigants of access to justice. Accordingly CPR 7.6(3)(a) includes cases where the court failed through oversight to serve the claim form within the permitted period.
• The court reaffirmed that CPR 6.9 is an exceptional power. It endorsed the analysis in Anderton and Wilkey that retrospective dispensing with service must be confined to exceptional circumstances and should not be used to subvert the limitations in CPR 7.6, but recognised limited categories of exceptional cases (particularly pre-Anderton ones) where dispensing may be appropriate.
• Applying these principles to the facts, the Court of Appeal found that the real cause of the failure to serve in Cranfield was court neglect, that the claimants had acted promptly upon discovery, and that extension of time was therefore properly granted below. The defendant's appeal was dismissed.

Wider context:

• The court emphasised the importance of certainty in service rules, the restricted and exceptional nature of the CPR 6.9 dispensing power, and the need to construe the rules so as not to deny access to the courts where the fault lies with the court itself.

Appeal dismissed. The Court of Appeal held that CPR 7.6(3)(a) — the power to extend time where "the court has been unable to serve" — includes cases where the court has failed through oversight or neglect to serve within the four month period. The court also confirmed that CPR 6.9 is an exceptional retrospective power which must be exercised cautiously so as not to undermine CPR 7.6; applying those principles to the facts, the failure to serve in Cranfield was principally the court's neglect, the claimants acted promptly, and the extension below was properly granted.

Appeal to the Court of Appeal from Guildford County Court (decision of His Honour Judge Hull QC reversing an earlier refusal by District Judge Darbyshire). Neutral citation at Court of Appeal: [2003] EWCA Civ 656.