Hallam Estates Ltd & Anor v Baker

When deciding whether to extend time for serving a claim form under CPR 7.6(2), the court must consider the claimant’s conduct throughout the entire period allowed for service. It must identify why service was not effected and assess the strength of that reason against the overriding objective.

The expiry of a limitation period is of considerable importance. Loss of a limitation defence is itself a significant matter and cannot be treated merely as ordinary prejudice caused by delay. An extension which would or might deprive a defendant of that defence should not be granted without a sufficient justification. Where the claimant gives no acceptable explanation for leaving service until shortly before the deadline, the court should set aside an extension granted without notice.

The claimants brought a libel claim arising from an email sent on 17 May 2010. The claim form was issued on 11 May 2011, shortly before expiry of the one-year limitation period, but was not served within the ordinary four-month period under CPR 7.5.

The Master extended time for service under CPR 7.6(2), without notice, and later refused the defendant’s application to set that order aside. The claim form was then served by an alternative method on the defendant’s solicitors. The defendant appealed, challenging the Master’s treatment of the reasons for delay, the significance of limitation, and the operation of CPR 6.9.

1. Appeal allowed. The order extending time for service was set aside.
2. Under CPR 7.6(2), the court must exercise its discretion in accordance with the overriding objective. It must consider why the claim form was not served during the whole of the four-month period allowed by CPR 7.5. The Master erred by considering only the claimant’s difficulty after discovering, in late August, that the defendant had left her known address.
3. The claimant’s reason for non-service must be evaluated in the context of the entire period. The authorities establish that a very good reason will usually justify an extension, while a weaker reason makes refusal more likely. A defendant’s solicitors have no obligation to disclose the defendant’s address for service.
4. The Master also erred in treating expiry of the limitation period as relevant only to prejudice caused by the passage of time. The loss of a limitation defence is independently a matter of considerable importance. In a defamation claim, where the limitation period is one year, an extension which would or might deprive the defendant of that defence requires exceptional justification.
5. CPR 6.9 did not alter the result. On one view, the claimants had taken reasonable steps and could have served at the last known address or applied for alternative service. On the other view, they had not taken those steps and had no acceptable explanation for the delay. Either way, no sufficient reason justified the extension.
6. The claimants’ new argument that the defendant’s application to set aside was out of time was not considered on the merits. It had not been raised before the Master, and it would not have been just to allow it to be raised for the first time on appeal.

• High Court (Queen’s Bench Division): The defendant’s appeal from the Master’s refusal to set aside the extension-of-time order was allowed. The order of 30 August 2011 was set aside.