Thomas v The Home Office

Parties may use Rule 2.11 of the Civil Procedure Rules 1998 to extend the period for serving a claim form under Rule 7.5. Every extension must be made by a written agreement. The requirement is satisfied by a signed document, an exchange of correspondence constituting the agreement, or written communications exchanged to confirm an earlier oral agreement.

An oral agreement is insufficient where it is recorded only in internal notes or in an unanswered letter from one party. Subsequent correspondence must be intended to constitute, confirm or record the agreement. Each further extension must independently comply with the written-agreement requirement.

The claimant sought damages for personal injury following an accident while employed as a prison officer. Although liability had been agreed subject to contributory negligence, his claim form was served after the four-month period prescribed by Rule 7.5(2) of the Civil Procedure Rules 1998.

The parties’ solicitors had orally agreed a series of extensions, which were variously recorded in internal notes and correspondence. District Judge Bellamy held that the parties could not extend the Rule 7.5 period by agreement and, alternatively, that the final agreed extension had expired before service. The claimant appealed.

The Court of Appeal considered whether Rule 2.11 permitted an agreed extension, what constituted a written agreement, whether estoppel could give effect to an oral agreement, and whether the claim form had nevertheless been served out of time.

1. Appeal dismissed. Rule 2.11 of the Civil Procedure Rules 1998 applies to the period for serving a claim form under Rule 7.5. Nothing in Rules 7.5 or 7.6 expressly excludes its operation. Such an exclusion should be implied only where necessary to make the Rules efficacious or where the inapplicability of Rule 2.11 is obvious. The Rules expressly identify other time limits which parties cannot vary, while omitting Rule 7.5. The parties may therefore agree an extension even in circumstances where the court itself could not grant one under Rule 7.6.

2. Every variation in a series of extensions must satisfy Rule 2.11. A first written variation does not permit later variations to be made orally. A written agreement may comprise one document signed by both parties, an exchange of correspondence agreeing the extension, or correspondence exchanged by both sides to confirm an earlier oral agreement.

3. A later document must be intended to constitute, confirm or record the agreement. An internal attendance note, even if each solicitor makes one, is insufficient unless exchanged and confirmed in writing. An unanswered letter from one solicitor recording an oral agreement is also insufficient. A merely incidental reference in correspondence sent for another purpose does not ordinarily constitute a written agreement.

4. None of the oral extensions in this case complied with Rule 2.11. Even if the extension to 1 April 2005 had been adequately recorded, none of the later extensions, including the purported extension into June, was supported by a written agreement.

5. The estoppel argument was abandoned in light of Actionstrength Ltd v International Glass Engineering IN. GL. EN SpA [2003] UKHL 17. The court therefore made no formal ruling on it, although Neuberger LJ considered the abandonment realistic.

6. The district judge was entitled to find that the final oral extension ran from 19 May and expired on 19 June 2005. The claim form deemed served on 23 June was consequently late even if all the oral extensions had otherwise been effective. Lloyd and Jacob LJJ agreed. Jacob LJ added that solicitors should record agreements in writing and specify an exact deadline.

1. Court of Appeal (Civil Division): By [2006] EWCA Civ 1355, unanimously dismissed the claimant’s appeal. Although the parties could extend the Rule 7.5 period by a written agreement under Rule 2.11, no effective written extension covered the date of service. The district judge was also entitled to find that the final oral extension had already expired.

2. Southport County Court: District Judge Bellamy struck out the claim after deciding that the claim form had been served out of time. He held that Rule 2.11 could not extend the Rule 7.5 period and alternatively found that the final purported extension expired on 19 June 2005.