Associated Electrical Industries Ltd v Alstom UK (A Private Unlimited Company)

A 20-day delay in serving particulars of claim was not trivial, particularly where the claimant had shown indifference to the procedural deadline and had not sought an extension promptly. Although justice between the parties and the prospect of satellite litigation remain relevant, they do not displace the need to enforce compliance with the Civil Procedure Rules. The guidance in Mitchell v News Group Newspapers Ltd applies directly to relief from sanctions, but should not be transplanted inflexibly to every retrospective extension application. Nevertheless, the overriding objective requires the court to consider proportionate cost, procedural discipline, fair allocation of court resources and justice between the parties. In the circumstances, strike-out was proportionate despite the absence of prejudice and the possibility that fresh proceedings might follow.

Associated Electrical Industries Ltd brought a contractual indemnity claim against Alstom UK arising from agreements made in 1989 and the settlement of a mesothelioma claim. The claim form was served without particulars of claim. After an acknowledgment of service was filed, the particulars were required under CPR 58.5 to be served by 29 October 2013, but were served on 18 November 2013.

Alstom applied to strike out the claim under CPR 3.4(2). AEI applied retrospectively under CPR 3.1(2)(a) for an extension of time. The central issues were whether the delay was trivial, whether there was a good reason for it, the relevance of possible fresh proceedings and limitation, and the weight to be given to procedural compliance and justice between the parties.

1. Strike-out and extension. Alstom’s application under CPR 3.4(2)(a) and (b) failed. The claim form disclosed a sufficient cause of action and there was no abuse of process. AEI was, however, in breach of CPR 58.5 by serving particulars late. The court allowed Alstom’s application under CPR 3.4(2)(c) and refused AEI’s retrospective extension application.
2. The delay was realistically 20 days and was not trivial. AEI had not deliberately planned to serve late, but its solicitors knew of the deadline and failed to seek an extension in good time. The failure displayed indifference to compliance. Difficulties in investigating the claim, the court’s failure to notify AEI promptly of the acknowledgment of service and the storm did not establish a good reason for the default.
3. The guidance in Mitchell v News Group Newspapers Ltd concerning triviality, good reason and promptness was directed to CPR 3.9 applications. It should not be treated as imposing an inflexible hierarchy of factors on every retrospective extension application. Applications under CPR 3.4 and CPR 3.1(2)(a) remain governed by the overriding objective.
4. In exercising those powers, the court must seek to deal with cases justly and at proportionate cost, while recognising that justice includes enforcing compliance with rules, practice directions and orders. Justice between the parties and the prospect of further satellite litigation may be relevant, but they do not automatically outweigh procedural discipline and the fair allocation of court resources.
5. Although strike-out would have been disproportionate if the dispute were considered only between the parties, the wider need to encourage disciplined litigation justified refusing relief. The claim form was struck out.