Lincolnshire County Council v Mouchel Business Services Ltd & Anor

Parties issuing protective proceedings close to limitation must pursue them promptly and effectively. An extension of time for serving a Claim Form may be sought without notice under CPR 7.6, but that does not satisfy the separate requirement in paragraph 6 of the Pre-Action Protocol for Construction & Engineering Disputes to apply on notice for directions where the Protocol has not been followed because the claim may become time-barred. A claimant who delays after obtaining an extension, or relies on continuing non-compliance with the Protocol, ordinarily lacks a good reason for further indulgence. Construction and engineering claims are not subject to a special regime giving Protocol compliance priority over the ordinary principles governing service and extensions of time. Failure to comply may result in the extension being set aside and the claim being struck out.

Lincolnshire issued proceedings against Mouchel and R.G. Carter concerning alleged defects in the design and construction of a school science block. The Claim Form was issued on 19 July 2013, close to possible limitation difficulties. Lincolnshire obtained an initial without-notice extension of time for service to 18 January 2014, but did not apply on notice for directions under paragraph 6 of the Pre-Action Protocol for Construction & Engineering Disputes.

Lincolnshire delayed its investigations and Protocol correspondence, then obtained a second without-notice extension to 18 April 2014. Mouchel applied to set that order aside. The central issue was whether the second extension should stand despite Lincolnshire’s failure to pursue service and Protocol compliance promptly and its failure to seek directions on notice.

1. The second extension was set aside and the claim against Mouchel was struck out. The proceedings had not been validly served within the period of validity of the Claim Form.
2. Under CPR 7.6, an application to extend time for service of a Claim Form may generally be made without notice. That is distinct from the requirement in paragraph 6 of the Pre-Action Protocol for Construction & Engineering Disputes that a claimant issuing proceedings without complying with the Protocol because the claim may become time-barred must apply to the court on notice for directions.
3. The ordinary principles governing extensions of time apply in TCC proceedings. The Protocol does not create a special regime in which Protocol compliance overrides the need for prompt service.
4. Lincolnshire had no good reason for its delay. It failed to apply for directions on notice, took no effective steps after issue, delayed the inspection and letter of claim, and failed to prepare and serve the proceedings even after Mouchel authorised acceptance of service.
5. The continuing failure to complete pre-action steps was not a good reason for failing to serve the Claim Form. Charles Church Developments Ltd v Stent Foundations Ltd & Peter Dann Ltd [2007] EWHC 855 (TCC) emphasised prompt Protocol compliance and did not support delay after proceedings had been issued.

First-instance decision. The judgment does not state any prior appellate decision in this litigation.