Mason v First Leisure Corporation Plc

Under CPR Part 7.6(2), a prospective application to extend the validity of a claim form is not subject to the restrictions applicable after expiry under Part 7.6(3). A claimant’s mistaken choice to seek more time for serving the claim form, instead of serving it and seeking more time for consequential documents, does not automatically justify setting aside service. The court must apply the overriding objective and assess the justice of the particular case, including prejudice, the explanation for the mistake and the parties’ conduct. A defendant may waive a jurisdictional objection by conduct which objectively encourages the claimant to proceed in expectation that no challenge will be made.

The claimant suffered a serious brain injury at a leisure centre and issued proceedings shortly before the third anniversary of the accident. A Master granted a prospective four-month extension for service of the claim form. The defendant later applied out of time to set aside that order and service. The Master granted the application, having treated the claimant as substantially late and regarded the extension application as the wrong procedural course.

The claimant appealed. The central issues were whether the Master had exercised his discretion on a mistaken factual and legal basis, whether the High Court should review or rehear the matter, and whether the defendant’s conduct waived or rendered unjust its jurisdictional challenge.

1. Appeal allowed. The order setting aside the extension and service of the claim form was reversed.
2. The Master had proceeded on the mistaken assumption that the claimant had instructed solicitors only immediately before expiry of the limitation period. The evidence showed that the limitation period probably began later because of the claimant’s post-injury condition. The Master had therefore exercised his discretion on a materially mistaken factual basis.
3. The Master had also erred in law. The strict observations in Godwin v Swindon Borough Council [2001] EWCA 1478, [2001] 4 All ER 641 and Vino’s case [2001] 3 All ER 784 concerned CPR Part 7.6(3). They could not be transferred without qualification to a prospective application under Part 7.6(2), which imposed no equivalent conditions.
4. The proper course was ordinarily to serve the claim form and seek extra time for the particulars of claim, medical evidence or other required material. That was the guidance in Jones v Wrekin District Council. But adopting the wrong course did not inevitably require service to be set aside. The court had to determine what justice required under the overriding objective.
5. On the evidence, the defendant had suffered no relevant prejudice. Its receipt of the letter of claim, acknowledgement of service, conduct in requesting extra time for its defence and failure promptly to contest jurisdiction objectively encouraged the claimant to incur expense in progressing the claim. Applying the waiver principle discussed in Monrose Investments Ltd v Orion Nominees Ltd and Sage v Double A Hydraulics Ltd, it was unjust to permit the defendant’s late challenge.
6. Even if the application had been made in time, setting aside service would have been disproportionate and inconsistent with the overriding objective. The claim was substantial, the solicitors had acted conscientiously though mistakenly, and no harm had in fact been caused.

The judgment records an appeal from the order of Master Leslie dated 11 March 2003, which set aside the earlier extension of time and service of the claim form. Permission to appeal and admission of further evidence were granted by Gray J on 16 May 2003. The present court reheard the matter in the interests of justice and allowed the appeal.