Carnegie v Drury

A retrospective extension of time for serving a claim form under rule 7.6(3) is available only if the claimant took all reasonable steps to serve within the permitted period and applied promptly after failing to do so. Both conditions are mandatory and precede any exercise of discretion.

Reasonableness is assessed objectively by reference to steps taken during the service period. Later attempts are irrelevant. A claimant may use the whole permitted period, but one who waits until the last moment and encounters an unexpected difficulty is very unlikely to establish that all reasonable steps were taken. A lengthy delay in applying ordinarily cannot satisfy promptness unless quite exceptional circumstances are fully explained.

The claimant brought libel proceedings against the BBC, the editor of its programme and a freelance journalist. Although the claim form was issued within the limitation period, the claimant made no attempt to serve the editor until the final day of the four-month service period. Documents faxed and posted to the BBC did not effect service on the editor.

Eady J retrospectively extended time under rule 7.6(3) of the Civil Procedure Rules. The editor appealed. The central issues were whether the claimant had taken all reasonable steps to serve within the permitted period and whether he had acted promptly in applying for an extension.

1. Appeal allowed. The claimant failed both mandatory conditions in rule 7.6(3) of the Civil Procedure Rules. The extension granted by Eady J was set aside, and the purported service under that order was declared invalid.

2. Lady Justice Smith, with whom Lord Justice Dyson agreed, held that the reasonable-steps inquiry concerns only conduct during the four-month period allowed for service. Attempts after that period are irrelevant. The first-instance judge therefore erred by considering a later internet search and attempts to contact the appellant by telephone. He had also proceeded on the mistaken factual basis that documents addressed to the appellant had been sent to the BBC.

3. The court had to determine objectively whether the steps actually taken during the permitted period were all that could reasonably have been expected. The claimant did nothing until the last available day, despite knowing that he lacked the appellant’s residential address. He could readily have asked earlier whether the BBC was authorised to accept service, applied without notice for an extension or alternative service, or attempted personal service at or near the appellant’s workplace.

4. A litigant may use every day allowed for service, but known risks attend delay. A claimant who waits until the final moment and then fails because of an unexpected problem is very unlikely to show that all reasonable steps were taken. Without satisfaction of both rule 7.6(3)(b) and (c), the court has no discretion to extend time.

5. Although unnecessary to dispose of the appeal, the court also held that the claimant had not applied promptly. He knew by mid-August that service had failed but did not issue his application until 6 November. Only quite exceptional circumstances, fully explained, could justify such a delay. Hopes that the appellant might waive his rights and vaguely described practical difficulties were insufficient.

6. The respondent was ordered to pay the appellant’s costs, subject to detailed assessment, with £5,000 payable on account within 90 days. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The appeal in [2007] EWCA Civ 497 was allowed. The extension was set aside and the resulting service declared invalid. Permission to appeal to the House of Lords was refused.

2. Queen’s Bench Division: Eady J granted a retrospective extension of time for serving the claim form and particulars of claim on the second defendant.