Galliford Try Construction Limited v Arcadis Consulting (UK) Limited & Ors

An agreement to postpone a pre-action meeting does not, without more, extend a court-ordered stay or the time for serving proceedings. A stay cannot be imposed by the parties alone, whether expressly or by implication; an application and court order are required. Where the period for serving a claim form has expired, the court’s power is governed exclusively by Civil Procedure Rules 1998, rule 7.6(3). General powers concerning extensions, procedural errors or relief from sanctions cannot circumvent that specific regime. The court must examine the substance of the relief sought. If the claimant could have served the claim form but did not, the conditions for a retrospective extension are not met.

The claimant issued protective proceedings concerning defects in the design and construction of a library and history centre. The proceedings were stayed to permit compliance with the Pre-Action Protocol for Construction and Engineering Disputes. The parties later agreed to postpone a without-prejudice meeting until March 2025, but did not agree an extension of the stay or obtain a further order before the stay and the period for service expired.

The claimant applied for an extension of the stay and, alternatively, an extension of time for service of the claim form and particulars of claim or relief from sanctions. The central issues were the objective effect of the parties’ correspondence, whether a stay could arise by agreement or implication, and the court’s jurisdiction under rule 7.6(3).

1. Applications refused. The parties objectively agreed to postpone the without-prejudice meeting, and the judge was prepared to accept that emails could constitute a written agreement for the purposes of rule 2.11. That agreement did not extend the court-ordered stay.
2. A postponement of a meeting does not itself imply an agreement to extend a stay. The claimant had time before expiry to serve the pleadings and seek a further stay or a short extension. Nothing said or done by the defendants amounted to an agreement that the claimant could leave its limitation position unprotected.
3. Under Civil Procedure Rules 1998, rule 2.11, a written agreement may vary a time specified by a rule or court order. An implied agreement is insufficient where the agreement must address an existing order with precision. In any event, the parties have no power to impose a stay themselves. At most, they could agree to seek a consent order, subject to the court’s discretion.
4. The substance of the relief sought was a retrospective extension of time for service. Rule 7.6(3) therefore applied. The claimant had not been unable to serve the claim form and had taken no steps to do so. The conditions in rule 7.6(3)(a) and (b) were not satisfied, so the court had no jurisdiction to grant the extension. It was unnecessary to decide whether promptness under paragraph (c) was established.
5. The general powers under rules 3.1, 3.9 and 3.10 could not be used to circumvent rule 7.6(3). If jurisdiction existed, the judge would nevertheless have refused relief because granting it would evade the established procedural scheme. The applications were therefore refused.

Not an appeal. The judgment determined two applications in the High Court concerning an existing stay and the time for service of protective proceedings.