City & General (Holborn) Ltd v Structure Tone Ltd & Ors

An extension of time for serving a claim form under Civil Procedure Rules 1998, rule 7.6(2), is discretionary and must be determined in accordance with the overriding objective. The court must consider why service did not occur, the effect on limitation rights, whether the claim was notified, and whether the claimant could have served the claim form while leaving detailed particulars or quantum to be dealt with later.

An ex parte extension is vulnerable to discharge on an inter partes rehearing. A claimant cannot rely on the order, or on an administrative indication that an extension will be granted, as a reason for preserving it.

The claimant brought two actions arising from alleged construction damage: one in negligence and nuisance against a crane company, and one under insurance policies against several insurers. The claims were connected with a pending arbitration concerning the claimant’s liability to its contractor for delay, loss and expense.

The claimant issued the claim forms shortly before limitation concerns arose, but did not serve them within the four-month period. Ramsey J granted short ex parte extensions. The defendants applied to discharge those orders, arguing that the claimant had no good reason for delaying service and that the extensions deprived them of limitation defences.

The central issue was whether the extensions should remain in force.

1. The applications to discharge Ramsey J’s orders were granted. The orders extending time for service were discharged, and the service of the claim forms effected pursuant to them was set aside.

2. Under Civil Procedure Rules 1998, rule 7.6(2), there is no threshold condition preventing an application made within the period specified by rule 7.5. The discretion must nevertheless be exercised in accordance with the overriding objective. The requirements in rule 7.6(3) remain relevant to that discretion, although their absence is not necessarily decisive.

3. The reason for non-service is always material. Other relevant considerations include whether limitation has expired or may be affected, whether the defendant knew the nature of the claim, and whether the claimant genuinely could not responsibly issue or serve proceedings without further information or expert evidence.

4. The claimant could have served the claim forms within time. The pending arbitration might have affected the eventual quantum of some claims, but it did not prevent service. The pleadings could identify the claims while leaving further particulars, or the proceedings could have been stayed. A claim for an indemnity or declaration could also have preserved the claimant’s position.

5. The case was materially different from Steele v Mooney, where an expert report was necessary to determine whether there was a viable claim. It was closer to Hoddinott v Persimmon Homes (Wessex) Ltd, where incomplete particulars did not justify delaying service of the claim form. The limitation consequences and absence of any letter before action or other intimation of suit were matters of particular importance.

6. The claimant’s reliance on the ex parte order and on the court administrator’s indication did not justify an extension. An application to discharge is a rehearing on the totality of the material, not a review of the without-notice decision. An ex parte order is obtained at the claimant’s peril and may be set aside.

The judgment is a first-instance decision on applications to discharge orders made by Ramsey J on 1 June 2009. No appellate history is stated.