Boxwood Leisure Ltd v Gleeson Construction Services Ltd & Anor

Where a claimant seeks, after expiry, to extend time for serving a claim form, the conditions in rule 7.6(3) of the Civil Procedure Rules 1998 are exhaustive. The general powers concerning relief from sanctions, procedural errors, case management and the overriding objective cannot circumvent those conditions.

Rule 3.10 may remedy a defective procedural step, but it cannot validate a complete failure to take the relevant step where the substance of the relief sought is a prohibited retrospective extension. Even if a general discretion were available, the court must respect the jurisdictional significance of originating process and any accrued limitation defence. A defendant’s knowledge of the claim is necessary in some contexts but is not sufficient to validate late service.

The claimant sought damages for alleged defects in the design and construction of a leisure centre. The claim form was issued in March 2020. By an order dated 7 April 2020, the court extended the period for serving the claim form and particulars of claim until 10 September 2020.

The claimant served the particulars of claim within that period but inadvertently omitted the claim form. It served the claim form by email on 14 September 2020 and then applied under rules 3.9, 3.10, 3.1(2)(m) and 1.2 of the Civil Procedure Rules 1998, or alternatively to vary the April order retrospectively.

The central questions were whether rule 7.6 constituted an exclusive code for the requested extension, whether the general procedural powers could validate service, and whether any available discretion should be exercised.

1. The application was dismissed. An application made after the period fixed under rule 7.6 may succeed only if the conditions in rule 7.6(3) of the Civil Procedure Rules 1998 are satisfied. The claimant made no application under that rule and could not show that it had taken all reasonable steps to serve the claim form. No step towards serving it had been taken before the extended deadline: paras [46]-[48], [59].

2. The general power in rule 3.10 could not be used to circumvent rule 7.6(3). Describing the default as a failure to comply with the April order did not change its substance. The claimant required a retrospective extension of the period for serving the claim form, which the court lacked power to grant outside rule 7.6(3): para [48].

3. Rule 3.10 is capable of curing an existing but defective procedural step. It did not assist where the relevant step—service of originating process within time—had not occurred at all. In any event, the court would have declined relief. Service of originating process subjects the defendant to the court’s jurisdiction and requires a clear temporal boundary. The defendants would also lose the benefit of potential limitation defences: paras [49]-[51].

4. Rule 3.9 likewise could not circumvent the specific code in rule 7.6(3). If the relief-from-sanctions jurisdiction had been available, the three-stage approach in Denton v TH White Ltd [2014] 1 WLR 3926 would have led to refusal. The breach was serious and significant because no valid claim form had subjected the defendants to the court’s jurisdiction. The genuine mistake and disruption caused by pandemic working did not excuse the solicitors’ failure to meet a contested service deadline in limitation-sensitive proceedings: paras [52]-[57].

5. The defendants knew that proceedings had been issued, could access the claim form electronically, received fully pleaded particulars and had protected possible contribution claims. That knowledge was relevant but insufficient. The potential loss of an accrued limitation defence was a powerful reason against retrospective validation: para [51]. The overriding objective and the court’s general case-management powers produced no different result: para [58].

• High Court (Technology and Construction Court): By an order dated 7 April 2020, the court extended time for service of the claim form and particulars of claim until 10 September 2020 and stayed the proceedings to permit compliance with the pre-action protocol. There was no appeal or application under the liberty-to-apply provision.

• High Court (Technology and Construction Court): The claimant’s subsequent application to validate service effected after the extended deadline was dismissed in [2021] EWHC 947 (TCC).