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Claimant refused extension of time for service of Particulars of Claim due to considerable delay
- Jul 12, 2022
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The High Court recently dismissed a claimant's application for an extension of time to serve his Particulars of Claim. There had been a history of delay and previous requests for extensions, including at a hearing in 2020 when the judge had described the claimant as "in the last chance saloon". Mark Whittaker, who was instructed to act on behalf of the defendant, explains the procedural background and why the application was dismissed.
CDE v Buckinghamshire County Council  EWHC 738 (QB)
The claimant, who came to the United Kingdom seeking asylum as an unaccompanied minor, pursued a claim against the local authority for alleged failings in its duties to him in various respects over the course of several years. The claimant had been looked after by the local authority since 2010 and alleged that the council's actions had caused or aggravated his numerous psychological and psychiatric disorders.
Proceedings were issued in March 2017, just before the claimant's 21st birthday, to preserve his position on limitation. A claim was brought for personal injury and damages pursuant to the Human Rights Act 1998, with the latter part of the claimant's claim arguably statute barred. Between 2017 and 2020, the claimant was granted numerous extensions of time in which to serve the Claim Form and his Particulars of Claim. The requests were made on the basis that he remained unable to formulate his claim.
At a subsequent interlocutory hearing in 2020 about the same issue, Mr Justice Lavender described the claimant as being in the "last chance saloon" and that the defendant had been "quite right to bring this case to the attention of the court". It was (or ought to have been) clear to the claimant's litigation friend and his representatives that the Particulars of Claim must be served by the further imposed deadline of 31 March 2021 in light of the many previous extensions and the lengthy period of time the solicitors had already had to prepare the case.
Notwithstanding both the warning and the deadline, the claimant – now with new solicitors – sought further extensions to September 2021, to which the defendant had voluntarily agreed in view of the claimant's vulnerable status. In his recent judgment, the Master observed that this agreement "surely could not have been received by the claimant as anything less than a remarkably generous and fortunate gesture."
Having failed to comply with the new September deadline, the claimant made a further application to extend time on 8 February 2022. (The solicitors had in fact attempted to apply in October 2021, but that application was procedurally invalid.) On this occasion the defendant opposed the application, citing abuse of process and seeking to strike out the claimant's claim. Five months had elapsed between the last extension deadline and the application. Whilst the defendant was mindful of the claimant's mental health problems, the claimant was represented by solicitors and the claim had been issued some five years ago. By the time of the hearing the claimant had turned 26.
As the application had been made after the time for service had passed, this was a case in which the relief from sanctions framework under CPR 3.9 applied, and therefore the guidance given in Denton v TH White Ltd  EWCA Civ 906 would also apply.
On the question of whether the breach was serious or significant, Master Thornett stated that the delay between 14 September 2021 and 8 February 2022 had been "without question, serious and significant".
On the question of whether there was good reason for this additional period of time, and whether in all the circumstances of the case permission should be granted, the Master was conscious of the significant and sensitive nature of the case but he "[did] not accept good reason for this period of delay [had] been made out" and he ultimately found "nothing in all the circumstances of the case as mitigates what is an admittedly serious breach for which there has been a very poor explanation". He therefore dismissed the claimant's application.
This was obviously a disappointing outcome for the vulnerable claimant. The defendant had been alive to the sensitive nature of the case and had been generous in its conduct over the previous five years, but this was a case where significant issues remained in dispute and the defendant had become severely prejudiced by the delay. The court noted that the defendant's opposition to the claimant's attempt to seek a further extension in September 2021 seemed to be "entirely well-placed".
The case therefore sends an important message to parties, litigation friends, and solicitors that repeated non-compliance with deadlines and the CPR generally will not be overlooked by the court, especially where there is no good reason for that non-compliance.
The judgment also highlights – in the context of the procedurally invalid application - that parties litigating in the Queen's Bench Division "have a professional obligation to familiarise themselves with the electronic filing system". In particular, it notes the difference between County Court applications for which progress has to await the attention of court staff or judiciary, whereas in the High Court, a party retains a responsibility to ensure its progress, and can do so due to the feature of Assigned Masters with dedicated personal clerks whose contact details are published.
For defendants finding themselves in similar positions, having to spend considerable sums of money to accommodate what might be considered to be highly unnecessary procedural defects, this will no doubt be a welcome result. This outcome is all the more pertinent for local authorities, where the use of public funds is carefully considered.
For more information, please contact Mark Whittaker, who acted for the defendant.
Partner // Head of Casualty and Occupational Health Team (London)