Caine v Advertiser And Times Ltd & Anor

A challenge to late service of a claim form, where the court has jurisdiction but is said not to be entitled to exercise it, must be made under CPR Part 11. The defendant must comply with the time limit in Part 11, although the court has jurisdiction to extend that time and may grant relief from the consequences of non-compliance. An application under CPR Part 3.4 is not the correct procedural route for that challenge. An extension of time for service under CPR Part 7.6(3) is subject to a strict test. A claimant who has taken no steps to comply with the service requirements cannot satisfy the requirement to have taken all reasonable steps.

John Caine appealed against Master Yoxall’s order permanently staying his libel claim against Advertiser and Times Limited and Edward Curry. The claim form had been issued in time, but the claim form and particulars of claim were served after the applicable period and without a response pack.

The defendants initially applied under CPR Part 3.4, then expressly applied under CPR Part 11 and sought an extension of time after Mr Caine argued that they had submitted to the court’s jurisdiction. The appeal concerned the correct procedural route, the availability of extensions of time for service and for a Part 11 application, waiver, and the certification of later applications as totally without merit.

The appeal was dismissed.

1. Extension of time for service. It was common ground that CPR Part 7.6(3) governed an out-of-time application to extend the period for serving the claim form. The regime was strict. The claimant had taken no steps to comply with CPR Part 7.5 before expiry of the four-month period and therefore could not show that he had taken all reasonable steps but had been unable to comply.
2. Correct route for challenging late service. Under