The Good Law Project (R on the application of) v The Secretary of State for Health and Social Care

CPR 7.6 does not directly govern extensions of time for serving judicial review claim forms. Its principles nevertheless govern applications under CPR 3.1(2)(a). Unless the claimant has taken all reasonable steps to comply with CPR 54.7 but has been unable to do so, time should not be extended.

Retrospective validation of defective service under CPR 6.15 requires good reason assessed in all the circumstances. Timely knowledge of the claim form is important but insufficient by itself. Loss of an accrued limitation defence is relevant prejudice and may justify refusal even where no other prejudice exists. A claim’s public interest does not independently justify validation. Careless service errors do not automatically exclude relief, but refusal may fall within the court’s wide discretion.

The claimant, Good Law Project, was a public interest campaigning organisation. It sought judicial review of the Secretary of State for Health and Social Care’s award of a personal protective equipment contract to Pharmaceuticals Direct Limited, the interested party. The contract had been performed before its award notice was published.

The claimant’s solicitors sent an unsealed claim form to the Government Legal Department’s designated email address for service. After issue, they sent the sealed form to the responsible case officer, who acknowledged receipt, but omitted the designated address. Valid service occurred one day after the seven-day period prescribed by CPR 54.7 expired.

O’Farrell J refused retrospective validation and an extension of time, and set aside the claim form in [2021] EWHC 1782 (TCC). The claimant appealed. Its challenge under CPR 3.10 was no longer pursued. The remaining issues concerned validation under CPR 6.15 and the principles governing extensions under CPR 3.1(2)(a).

Appeal dismissed by a majority, Carr and Underhill LJJ agreeing on the refusal of retrospective validation. Phillips LJ dissented on that issue. All three judges agreed that the appeal should fail in respect of the extension of time.

1. CPR 7.6 referred expressly to extensions for compliance with CPR 7.5. Its wording could not be supplemented to cover service under CPR 54.7. Judicial review claimants therefore applied under CPR 3.1(2)(a). However, the principles of CPR 7.6 governed that discretion by analogy. The shorter service period and requirement of promptness in judicial review provided no justification for a more lenient regime. Unless the claimant had taken all reasonable steps to comply with CPR 54.7 but had been unable to do so, time should not be extended (paras 44–53, 80–85).
2. The approach in Denton v TH White Ltd [2014] EWCA Civ 906 concerned procedural defaults after commencement and service, rather than service of originating process. The judge had applied an unduly favourable approach to the extension application. The claimant’s failure to take all reasonable steps nevertheless required refusal. Even under the three-stage approach, the jurisdictional importance of service, carelessness, short service period and loss of a limitation defence supported the same result (paras 78–82).
3. Under CPR 6.15, good reason depended on evaluation of all the circumstances. Relevant considerations included reasonable steps towards compliant service, timely knowledge of the claim form and prejudice from validation. None was independently decisive. Knowledge alone was insufficient. Loss of an accrued limitation defence remained relevant despite the provision’s purpose of permitting validation after limitation had expired. The different equitable jurisdiction under section 33 of the Limitation Act 1980 supplied no equivalent test (paras 54–58, 65–67, 97–100).
4. The majority held that refusal of validation fell within the judge’s discretion. The nominated address was clear, service was straightforward and the solicitors had made an inadequately explained careless error. The judge had considered timely receipt and the surrounding chronology. Public interest did not independently justify validation. Carelessness did not inevitably preclude relief, but loss of the limitation defence could justify refusal without further prejudice (paras 59–77, 99–101).
5. Phillips LJ would have allowed the appeal under CPR 6.15. He considered that the judge had insufficiently evaluated the otherwise reasonable steps, the responsible officer’s acknowledged receipt and the absence of practical detriment. Merely restating the defect and expiry of limitation did not adequately address whether validation should be granted (paras 88–95).

The refusal of relief and the order setting aside the claim form remained undisturbed.

• Court of Appeal (Civil Division): [2022] EWCA Civ 355 . The appeal was dismissed. Carr and Underhill LJJ upheld refusal of retrospective validation; Phillips LJ dissented. All three judges agreed that the extension-of-time challenge should fail.
• High Court, Technology and Construction Court: [2021] EWHC 1782 (TCC). O’Farrell J refused relief under CPR 3.10, retrospective validation under CPR 6.15 and an extension under CPR 3.1(2)(a). She set aside the claim form for want of jurisdiction arising from invalid service.