Malcolm -Green v And So To Bed Ltd

An extension of time to serve a claim form should be granted only in accordance with the overriding objective and the strict requirements governing service. The claimant’s reasons are highly material, but there is no threshold requirement to show a good reason. Where no good reason exists, exceptional circumstances are required. The court should consider the position when an application to set aside is heard, including whether refusal would cause limitation prejudice to the defendant. Notification that proceedings have been issued is not equivalent to service. It does not give the defendant the same opportunity to participate in the litigation or enable the court to control it. A claimant should serve the claim form within the permitted period and, where appropriate, seek an extension for serving the particulars of claim.

The claimant, a professional photographer, alleged that the defendant had infringed copyright in photographs produced for it and had used them outside the scope of an alleged non-exclusive licence. The claim form was issued on 29 April 2013, but the claimant did not serve it until 30 September 2013, after obtaining an extension of time from District Judge Lambert.

The defendant applied to set aside that extension under CPR rule 11 or CPR rule 23.10, and to strike out the claim. The central issue was whether the extension should stand despite the absence of a good reason for late service and the potential loss of limitation defences.

1. The extension was set aside and the claim was struck out. The claimant had advanced no good reason for failing to serve within the four-month period. The defendant’s delay in responding and counsel’s holiday did not qualify.
2. Under CPR 7.6, the absence of a good reason is not an absolute threshold. The weaker the reason, however, the less likely an extension will be granted. Where there is no good reason, exceptional circumstances are required.
3. The possible loss of a limitation defence was decisive against the claimant. The court should not grant an extension where the defendant would lose a limitation defence which could not be characterised as de minimis, whether the affected infringements formed a large or small proportion of the claim.
4. The claimant’s proposed abandonment of damages for older infringements did not make the case analogous to Hoddinott v Persimmon Homes (Wessex) Ltd. Correspondence notifying the defendant that a claim form had been issued did not communicate the precise nature and scope of the claim in the same way as service. Nor did it give the defendant an adequate opportunity to participate or enable effective court control.
5. The proper course would have been to serve the claim form within four months and apply, if necessary, for an extension to serve the particulars of claim. The court therefore set aside paragraph 1 of the District Judge’s order dated 15 August 2013 and struck out the claim. The parties were directed to file written arguments on the form of order, particularly costs.

First-instance decision. The judgment does not state any subsequent appellate history.