Imperial Cancer Research Fund & Anor v OVE ARUP & Partners Ltd & Anor

On an application made within the period for serving a claim form, the court has a discretion under CPR 7.6(2) to extend time. The rule imposes no threshold condition. The discretion must be exercised in accordance with the overriding objective, having regard to all the circumstances.

An extension may be justified where investigations and expert evidence are needed to establish whether there is a viable claim against a particular defendant. That is materially different from seeking time merely to complete particulars of loss or other secondary details. Limitation concerns are important but do not necessarily determine the application.

The claimants issued proceedings concerning alleged water ingress at a research laboratory and applied under CPR 7.6(2) for an extension of time to serve the claim form. The extension was granted without notice until 22 July 2009.

The defendants applied under CPR 23.10 to set aside that order. The claimants relied on the need for excavation, documents and expert evidence to investigate the cause of the defects and determine whether they had a viable claim against the defendants, architects and contractors. The central issue was whether those circumstances justified extending time for service of the claim form.

1. The defendants’ application was dismissed. The order of 20 April 2009 extending time for service of the claim form until 22 July 2009 remained in force.
2. An application under CPR 23.10 to set aside an order made without notice involves a rehearing of the original issue, rather than a review of the earlier decision: Hashtroodi v Hancock [2004] 1 WLR 3206.
3. Under CPR 7.6(2), there is no threshold condition restricting the right to apply for an extension. The discretion is exercised under the overriding objective. The court must evaluate why the claim form was not served, together with the other relevant circumstances.
4. The reason relied on here was materially different from a wish to complete particulars of claim, a schedule of loss, or expert evidence of secondary importance. The claimants needed excavation, project documents and expert analysis to identify the cause of the water ingress, attribute responsibility and determine whether a viable particularised claim existed against a particular party. Their solicitors had acted sensibly and responsibly in waiting for that information, applying the approach in Steele v Mooney [2005] 2 All ER 256.
5. The cases involving delay to finalise particulars, loss or an accountant’s report—Leeson v Marsden and Glass v Surrendran, reported under Collier v Williams [2006] EWCA Civ 20, and Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806—did not govern these materially different circumstances.
6. The likely expiry of some primary limitation periods was a matter of considerable importance. It did not outweigh the need to investigate potentially viable causes of action, including possible secondary causes of action or issues concerning later knowledge.
7. The claimants’ failure to seek directions under paragraph 6 of the Pre-Action Protocol for Construction and Engineering Disputes was relevant but was not determinative. Such a breach ordinarily bears principally on costs.