Hashtroodi v Hancock

A timely application to extend the period for serving a claim form under rule 7.6(2) is not subject to a threshold requirement that the claimant show a good reason for non-service. The discretion must be exercised in accordance with the overriding objective.

The reason for failing to serve remains highly material. A very good reason will usually justify an extension, while mere oversight by the claimant or legal representative strongly favours refusal, although it is not an absolute bar. The court should adopt this calibrated approach without importing the former procedural code or its case law into the Civil Procedure Rules 1998.

In Hashtroodi v Hancock, the claimant issued a personal injury claim shortly before expiry of the limitation period. His solicitors did not serve the claim form during its four-month period of validity, despite knowing the defendant’s address. They obtained a three-week extension without notice while awaiting the nomination of solicitors authorised to accept service.

Deputy Master Eastman refused the defendant’s application to set aside that extension and dismissed a separate application alleging that service by document exchange had been ineffective. The defendant appealed. The principal issue was how the discretion under rule 7.6(2) should be exercised where the application was made in time but the claim had become statute-barred. A further issue concerned service by document exchange.

1. The appeal was allowed. The order extending time for service was set aside. The claimant was ordered to pay the defendant’s costs of the action and the appeal.

2. The Civil Procedure Rules 1998 constitute a new, self-contained procedural code. Former procedural authorities should not ordinarily be imported when interpreting them, although considerations identified under the former rules may retain intrinsic persuasive force. The approach in Biguzzi v Rank Leisure plc [1999] 1 WLR 1926 was followed.

3. Rules 7.6(1) and 7.6(2) contain no implied threshold condition requiring a good reason for failing to serve within the specified period. The express and stringent conditions governing late applications under rule 7.6(3), contrasted with their absence from rule 7.6(2), demonstrated that no such condition was intended. The former approach in Kleinwort Benson Ltd v Barbrak Ltd [1987] 1 AC 597 and Waddon v Whitecroft-Scoville Ltd [1988] 1 WLR 309 was therefore not applicable to rule 7.6(2).

4. The discretion under rule 7.6(2) must be exercised in accordance with the overriding objective. The court must always identify and evaluate the reason for non-service. A very good reason will usually lead to an extension, while a weaker reason increases the likelihood of refusal. Mere oversight by a claimant or legal representative is a powerful reason to refuse relief, although it is not an absolute bar. No further checklist should be prescribed.

5. The solicitors knew the defendant’s address and could readily have served him by first-class post or personally. Waiting for insurers to nominate solicitors did not explain the failure to use those available methods. The absence of any excusing reason was decisive and outweighed the substantial value of the claim, the requested extension’s short duration, and the absence of identified case-management prejudice.

6. An application under rule 23.10(1) to set aside an order made without notice requires a rehearing of the original issue, rather than a review of the earlier exercise of discretion. The separate question about service by document exchange was moot after the extension was set aside and, because the relevant practice direction had been amended, the court declined to determine it.

1. Court of Appeal (Civil Division): In Hashtroodi v Hancock [2004] EWCA Civ 652, the defendant’s appeal was allowed and the order extending time for service was set aside. The separate issue concerning service by document exchange was not determined.

2. Queen’s Bench Division, Deputy Master Eastman: Refused to set aside the extension granted without notice and dismissed the defendant’s application to strike out the action for ineffective service.

3. Queen’s Bench Division, Master Tennant: Granted the claimant, without notice, a three-week extension of time for serving the claim form.