Foran v Secret Surgery Ltd & Ors

Under CPR 7.6(2), the court has a broad discretion to extend time for serving a claim form, but must carefully evaluate the reason for non-service and the evidence supporting the application. The stronger the reason, the more likely an extension will be granted. Foreign service difficulties do not of themselves establish good reason, particularly where the applicable period already allows six months for service outside the jurisdiction. Where limitation has expired, the defendant’s potential limitation defence is a material consideration and an extension should be granted only in exceptional circumstances. Evidence must give a full explanation of all circumstances relied upon. Awaiting a medical report or complete particulars is not ordinarily a good reason for delaying service of the claim form.

The claimant brought clinical negligence proceedings arising from cosmetic surgery in Poland against an English tour operator and three Polish defendants. The claim form was issued within the limitation period, but the Polish defendants were not served within the six-month period permitted by CPR 7.5(2).

The Master extended time for service under CPR 7.6(2), initially on the papers and subsequently at an inter partes hearing. The defendants appealed with permission granted by Stewart J. The appeal concerned whether the claimant had shown a sufficient reason for the delay and whether the Master had properly considered the expiry of limitation and the defendants’ potential limitation defence.

1. The appeal was allowed. The Master’s orders extending time for service were set aside.

2. CPR 7.6(2) does not impose a threshold condition equivalent to CPR 7.6(3). Nevertheless, the court must determine and evaluate why the claim form was not served within the prescribed period, applying the overriding objective. A very good reason will usually justify an extension; the weaker the reason, the less likely an extension becomes. This approach was applied from Hashtroodi v Hancock [2004] EWCA Civ 652 and Collier v Williams [2006] EWCA Civ 20.

3. The six-month period for service outside the jurisdiction was generous and took account of the difficulties ordinarily encountered in foreign service. Those difficulties required earlier and more urgent action, not a relaxed approach. The supporting evidence had to state all relevant circumstances and fully explain the failure to serve, as required by Practice Direction 7A, paragraph 8. The claimant’s evidence merely recited a timetable and omitted material matters, including earlier enquiries, efforts to accelerate translation and service, and consultation with the Polish lawyer.

4. The expiry of limitation and the resulting loss of a potential limitation defence had to be weighed in the balance. The Master wrongly believed that the application had been made within the limitation period and therefore wrongly distinguished Bayat and Others v Cecil and Others [2011] EWCA Civ 135. The claimant’s loss of a potentially good claim did not outweigh the defendants’ limitation position.

5. Any decision to await a medical report or complete particulars would not constitute a good reason for failing to serve the claim form. Such matters should be addressed by separate case-management applications after service, following Collier v Williams [2006] EWCA Civ 20. Important applications of this kind should ordinarily be dealt with at an urgent hearing rather than on paper, particularly where limitation is engaged.

• High Court (Queen’s Bench Division): appeal from the Master’s order dated 11 January 2016 allowed; the extensions of time for service were set aside.
• Master Roberts: granted extensions of time for service under CPR 7.6(2), initially by an order on the papers and subsequently after an inter partes hearing.
• Stewart J: granted permission to appeal.