Kesabo & Ors v African Barrick Gold Plc & Anor

Particulars of claim served after the time fixed by CPR 7.4(2) are out of time. The deemed-service rule in CPR 6.14 determines when service is deemed to occur for subsequent procedural purposes; it does not extend the period for completing the service step under CPR 7.5. Relief from sanctions under CPR 3.1(2)(a) and 3.9 requires consideration of all the circumstances, including efficient and proportionate litigation and compliance with the rules. The post-1 April 2013 approach is more rigorous, but the discretion must not be applied formulaically. Relief may nevertheless be granted where the default was non-deliberate, promptly addressed, attributable to solicitors rather than clients, and refusal would terminate the claims, provided the proposed pleading can be brought into compliance.

The claimants brought claims concerning injuries and deaths at a Tanzanian gold mine. The claim form was served within the period prescribed by CPR 7.5, but the particulars of claim were served 16 hours after the deadline in CPR 7.4(2).

The claimants sought a declaration that service was in time. Alternatively, they sought an extension of time and relief from sanctions. The defendants opposed the application and sought to have the claims struck out. The issues were whether the particulars had been served in time and, if not, whether relief should be granted despite substantial deficiencies in the pleading.

1. Time for service. The claimants’ particulars of claim were not served within the period required by CPR 7.4(2). CPR 7.5(1) required completion of the relevant service step before midnight on the calendar day four months after issue. CPR 6.14 fixed the deemed date of service for subsequent procedural calculations; it did not extend the time for completing the service step. The application for a declaration that service was in time was therefore refused.
2. Deficiencies in the pleading. The particulars were skeletal, inadequately particularised and improperly grouped 12 individual claims. They failed sufficiently to identify the factual and legal basis of the claims, contained broad and inadequately pleaded duties and breaches, and did not provide an adequate statement of loss or statement of truth. Relief could not be granted in respect of the pleading as then framed.
3. Relief from sanctions. The application was governed by CPR 3.1(2)(a) and 3.9. The court had to consider all the circumstances, particularly efficient and proportionate conduct of litigation and the importance of compliance with rules. The stricter post-1 April 2013 approach did not make the discretion formulaic.
4. Relevant factors included the claimants’ solicitor’s mistake, the absence of intentional default or previous infractions, the prompt application, the difficulties in obtaining instructions, the defendants’ reasonable conduct, the limited significance of the disclosure obtained, the continuing inadequacy of the pleading, and the consequence that refusal would end the claims and potentially require proceedings under a less advantageous costs regime.
5. Balancing those matters, the court granted relief and a short extension, measured in days rather than weeks, so that compliant particulars could be served. The pleading was required to address the deficiencies identified in the judgment and the defendants’ further criticisms. Costs and directions concerning continuation of the anti-suit injunction were reserved.

First-instance decision. No earlier judicial decision in the same proceedings is stated.