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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Aktas v Adepta (A Registered Charity)  EWCA Civ 1170 (22 October 2010)
Cite as:  CP Rep 9,  2 All ER 536,  2 WLR 945,  PIQR P4,  QB 894,  EWCA Civ 1170
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOCKTON COUNTY COURT
DISTRICT JUDGE DIGNAN
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE AIKENS
IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOCKTON COUNTY COURT DISTRICT
JUDGE DIGNAN 8SK04492
|Aktas||Appellant / Claimant|
|Adepta (a registered charity)||Respondent/ Defendant
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE MITCHELL
|Dixie||Appellant / Claimant|
|British Polythene Industries plc||Respondent/ Defendant
Mr Christopher Purchas QC and Mr Toby Gee (instructed by Just Law) for the Respondent Adepta
Mr Richard Methuen QC and Mr Andrew Roy (instructed by Savas & Savage Solicitors) for the Appellant Dixie
Mr James Rowley QC and Mr Steven Snowden (instructed by Kennedys) for the Respondent British Polythene Industries Ltd
Hearing dates : 15th and 16th March 2010
Crown Copyright ©
Lord Justice Rix :
4.9.04 Mrs Aktas suffers an injury at work.
11.7.06 Letter of claim.
25.5.07 Application for pre-action disclosure
29.8.07 Consent order for pre-action disclosure.
3.9.07 First claim form (7SK04282) issued on last day of limitation period, and has to be served by 3.1.08, unless an extension is granted.
4.9.07 Defendant admits liability. This was in knowledge of the issue of the claim form.
12.12.07 Deputy District Judge Heppel extends time for service to 2.4.08 on application made ex parte on the ground that medical reports are awaited.
20.2.08 Mrs Aktas' solicitors receive orthopaedic report.
28.2.08 Mrs Aktas' solicitors receive psychiatric report.
2.4.08 Last day for service. Mrs Aktas' solicitors leave the claim form at the defendant's solicitors' office. Now the service would be deemed to have been effected on the same day, but at that time CPR Part 6.7 deemed the claim form to be served on the following day.
3.4.08 Date of deemed service, one day out of time.
17.7.08 Mrs Aktas applies for order dispensing with the need for service and for the action to proceed without service.
31.7.08 Deputy District Judge Masheder refuses that application and sets aside the claim form.
22.8.08 Mrs Aktas issues her second claim form (8SK04492) in the same terms as her first.
11.9.08 Defendant applies to strike out the second claim form.
21.4.09 District Judge Dignan strikes out the second claim form.
24.6.09 HHJ Tetlow refers Mrs Aktas's appeal to the court of appeal.
27.2.05 Mr Dixie suffers injury at work.
19.8.05 Letter of claim.
5.10.05 Defendant admits liability and asks Mr Dixie to make no further liability investigations.
22.12.05 Defendant makes first interim payment of £1000.
30.12.05 Mr Dixie's medical report disclosed to defendant.
30.3.06 Mr Dixie's report re capacity for work disclosed to defendant.
18.4.06 Defendant makes second interim payment of £1000.
July '06 Defendant terminates Mr Dixie's employment.
28.7.06 Defendant's solicitors advise they have been instructed.
6.9.06 Defendant makes third interim payment of £1000.
12.1.07 Mr Dixie examined by defendant's medical expert.
25.4.07 Defendant's medical report disclosed to Mr Dixie. Mr Dixie's schedule of special damage sent to defendant.
1.6.07 Mr Dixie's supplementary medical report disclosed.
10.8.07 Defendant's settlement offer.
22.2.08 First claim form issued (8B101401) to protect the claim. Time for service expires 22 June 2008.
27.2.08 Defendant advised that protective proceedings have been issued.
2/08-5/08 Correspondence between the parties re medical reports etc.
14.6.08 Defendant's doctor examines Mr Dixie.
22.6.08 Last date for service of claim form
3.7.08 Mr Dixie's solicitors send claim form to defendant.
7.7.08 Deemed date of service.
16.7.08 Defendant applies to strike out proceedings or for judgment.
13.8.08 District Judge Manley strikes out first claim form and orders repayment of interim payments.
29.8.08 Mr Dixie issues second claim form (8B107791).
5.9.08 Mr Dixie serves second claim form.
3.10.08 Defendant serves defence, pleading limitation.
4.11.08 Mr Dixie applies for order under section 33 to disapply limitation.
3.2.09 Defendant cross-applies to strike out second claim form.
8.7.09 HHJ Mitchell strikes out second claim form, dismisses Mr Dixie's application under section 33 and grants permission to appeal.
Section 33 of the Limitation Act 1980
33. – Discretionary exclusion of time limit for actions in respect of personal injuries or death
If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –
(a) the provisions of section 11 or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates…
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A, or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or expert advice and the nature of any such advice he may have received."
Service under the Civil Procedure Rules (CPR)
"(1) After a claim form has been issued, it must be served on the defendant.
(2) The general rule is that a claim form must be served within 4 months of the date of issue…"
"(1) The claimant may apply for an order extending the period within which the claim form may be served.
(2) The general rule is that an application to extend the time for service must be made –(a) within the period for serving the claim form specified by rule 7.5; or(b) where an order has been made under this rule, within the period for service specified by that order.(3) If the claimant applies for an order to extend time for service of the claim form after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make an order only if –(a) the court has been unable to serve the claim form; or(b) the claimant has taken all reasonable steps to serve the claim form but has been able to do so; and(c) in either case, the claimant has acted promptly in making the application.
(4) An application for an order extending the time for service –
(a) must be supported by evidence; and
(b) may be made without notice."
"Where there has been an error of procedure such as a failure to comply with a rule or practice direction –
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error."
"In these rules, as under the previous rules, non-compliance with a rule, or (under these rules) a practice direction, does not nullify the proceedings or any step taken in the proceedings unless the court so orders."
"Whilst r.7.6 is self-explanatory and effects no change in practice it nevertheless provides welcome clarification to the previous provisions found in RSC 6, rr.8(2) et seq. and CCR O.7, r.20(2) and (3)."
This is not, however, to be found in the current 2010 edition.
Service under the RSC
"(1) It is the duty of the plaintiff to serve the writ promptly. He should not dally for the period of its validity; if he does so and gets into difficulties, he will get scant sympathy.
(2) Accordingly there must always be a good reason for the grant of an extension. This is so even if the application is made during the validity of writ and before the expiry of the limitation period; the later the application is made, the better must be the reason…
(6) The application for renewal should ordinarily be made before the writ has expired. The court has power to permit a later application but it must be made within the appropriate period of the first expiry…
(7) A writ will not normally be renewed so as to deprive the defendant of the accrued benefit of a limitation period. The strict view taken in Heaven v. Road and Rail Wagons Ltd  2 Q.B. 355…was approved by the Court of Appeal in Chappell v. Cooper (above) but must be read in the light of the decision of the House of Lords in Kleinwort Benson Ltd. v. Brabrak Ltd., The Myrto (No.3)  A.C. 597…Possible exceptions are the good reasons in 4(a) or (b), above [where negotiations are proceeding; where legal aid is awaited], or very sharp practice by the defendants which has deceived the plaintiff into inactivity…"
"May 23, 1973: the accident…July 26, 1974: protective writ issued and insurers notified of it. July 26, 1975: writ ceased to be valid unless renewed: see R.S.C., Ord. 6, r. 8…May 23, 1976: three years elapsed since the accident…October 25, 1976: insurers ask for evidence that the writ had been renewed. Plaintiff's solicitors reply that it had not been renewed. November 2, 1976: insurers say "snap"…December 30, 1976: plaintiff's solicitors apply to renew the writ and give history of negotiations in detail. March 10, 1977: registrar refuses leave to renew. July 4, 1977: judge affirms decision of registrar."
In another of the cases, the decision affirming the judge was that of this court (at 902B).
"The granting of this discretion is a revolutionary step…The value of this wide discretion is well shown by the present series of cases. They all arise out of circumstances which the various committees never had in mind at all. In each of the three cases there were negotiations for a settlement, but the plaintiff's solicitors, by the merest slip, allowed time to run out. They failed to renew the writ in time. This slip did not prejudice the defendant or his insurers in the least. Yet as soon as the insurers discovered it, they cried "snap" and broke off the negotiations. They said to the plaintiff: "You are statute-barred. We are not liable. You sue your own solicitors for negligence. Make their insurers pay. And not us." All of the judges rejected this submission. Each of the judges exercised his discretion in favour of the plaintiff. I think they were quite right. As a matter of simple justice, it is the defendant's insurers who should pay the plaintiff's claim. They have received the premium to cover the risk of these accidents. They should not be allowed to foist their liability on to the plaintiff's solicitors or their insurers by calling "snap" as if it were a game of cards."
"I do not think, however, that it carries much weight in these cases. The court is not concerned solely with financial prejudice to the plaintiff. It is prejudicial to be forced to start another set of proceedings and against a party whom one does not particularly wish to sue and to be deprived of a good cause of action against the original tortfeasor."
Walkley and Horton
"But if the plaintiff has brought his action within the three years, how has he been prejudiced by section 2A? This I fail to understand. If this argument is sound, the respondent's case fails in limine. He brought his first action within the normal limitation period, and if he has suffered any prejudice, it is by his own inaction and not by the operation of the Act."
"The detailed grounds relied on to distinguish Walkley in these cases are not in my opinion important: the significance of the decisions lies in the Court of Appeal's unwillingness to regard the ratio of Walkley as applicable to any case not on all fours with it and in the disfavour with which the reasoning and decision in Walkley has in some of these cases been regarded."
"21 (1) Counsel for the appellant submitted that…the question for the court under section 33 is always whether it is equitable or inequitable as between the parties to override the time bar which, if relied on by the defendant, will, unless disapplied by order of the court, defeat the action which the plaintiff has ex hypothesi brought out of time.
22 This analysis is, as I think, plainly correct. But the appellant contended that it could not readily be reconciled with the reasoning in Walkley. It was held there that the plaintiff, having issued a writ within the three-year period could not be prejudiced by section 11. But the action timeously brought by the plaintiff in Walkley, as in the Firman v Ellis  QB 886 cases, could not be effectively pursued. The plaintiff could succeed only in his second action. To that section 11 provided a bar which prejudiced him by defeating his action. Section 11 did not prejudice the plaintiff in his first action, brought in time, but that was not the relevant action. When in Thompson  1 WLR 744 it was said, more than once, that section 11 did not affect Mr Walkley at all, this overlooked the fact that section 11 affected him, unless disapplied, by defeating his second action. The negligence of his solicitors gave rise to the need for a second action, but it was the time bar which meant that that action was bound to fail.
23 Despite the great eminence of those who gave judgment in Walkley, explained and distinguished that decision in Thompson and applied it in Deerness  2 Lloyd's Rep 260, I do not think there is any answer which can be given to the appellant's criticisms and counsel for the MIB provided none.
24 (2) The appellant relied on the fine distinctions drawn by the Court of Appeal in some of the cases cited above as evidence of the court's reluctance to apply Walkley in any case where it was not strictly constrained by that authority to do so, and in particular on the distinction, acknowledged by Lord Diplock to be anomalous, between cases where the plaintiff had issued proceedings within the primary limitation period, which had thereafter foundered for some procedural reason and cases where no proceedings had been issued at all. There was no rational ground for concluding that a defendant should be vulnerable in the latter case, where the plaintiff's solicitor's negligence would probably be greater but not in the former case where it would probably be less. This was an anomaly caused not by the rule that proceedings are brought when the writ is issued, and not by the language of the statute, but by the decision in Walkley. In the result, the distinction lacked any principled justification.
25 I can, again, see no answer to this criticism, and I do not think counsel for the MIB was able to advance one.
26 (3) In reliance on Firman v Ellis, strongly affirmed on this point by the House in Thompson, the appellant contended that the legislation conferred a wide and unfettered discretion and that it was accordingly inconsistent with that interpretation to constrain the exercise of the section 33 discretion by technical rules such as that laid down in Walkley. This was to subvert the intention of Parliament to be derived from the terms of the legislation.
27…Lord Denning's exposition of the statutory language in Firman v Ellis is to my mind persuasive. It was endorsed by the house in Thompson. It has never to my knowledge been questioned.
28 On this point also I would accept the thrust of the appellant's criticism. Mr Walkley's case for seeking an exercise of the section 33 discretion in his favour was, as Waller LJ rightly held, of the weakest. Thus the outcome of the case was clearly right. But I feel bound to conclude that the reasoning of the decision was unsound, that it has given rise to distinctions which disfigure the law in this area and that the effect has been to restrict unduly the broad discretion which Parliament conferred."
"31. There is force in these arguments. But this is not a case in which contracts, settlements of property or fiscal arrangements have been entered into on the faith of a settled legal rule. The criminal law, where certainty is particularly important, will be unaffected if the House departs from Walkley. There will be no detriment of public administration. While injustice may bear more hardly on individuals, I do not regard the concept as inapplicable to judgments affecting corporations with competing interests. I would in the result depart from Walkley for three reasons, taken together: that it unfairly deprives claimants of a right Parliament intended them to have; that it has driven the Court of appeal to draw distinctions which are in my opinion correct but which are so fine as to reflect no credit on this area of the law; and that it subverts the clear intention of Parliament."
"37 It was argued below and in the House that it was an abuse for the appellant to bring a second action while his first action was still extant. The judge accepted that in the ordinary way it is an abuse to pursue two actions against the same defendants in respect of the same subject matter and indicated that if he were giving permission for the second action to continue he would require the first to be discontinued. This was, I think, the correct response. As it was, he dismissed both actions."
The judgments below
"3. In summary this is an application to strike out this claim as being an abuse of process on the basis that to allow this claim to continue would bring the Administration of Justice into disrepute amongst right thinking people: the application relies on this argument only…
12. The argument is that
(1) The Rules for serving a Claim Form, particularly where limitation has expired, are critical and that a failure to comply should result in the claim being lost.
(2) If the second claim here were not struck out it would have the effect of undermining all of the CPR 7.5 and Anderton authorities. In effect there would be no sanction, save for costs, and second claims after a strike out could be issued with impunity. That is the abuse. There are no exceptional/special circumstances to rescue this second claim…
13…to counter the above…the main attack centres around the effect of Horton…In a claim such as this where service was one day late and liability has been admitted it is not difficult to envisage an application under s.33 to disapply s.11 and to allow the claim to continue would succeed. Therefore it is the nub of the argument to decide if an Abuse of Process application can be considered and succeed without any reference to the s.33 criteria…
27. I am satisfied it is open to me to find in an appropriate case that where a claim has been struck out as a result of a failure to comply with CPR 7.5 that it is an abuse of process to issue a second claim outside the Limitation Period notwithstanding there is an extant application under s.33. Indeed, logically there should be no distinction between inside and outside the period…"
"6. The circumstances require me to decide how to balance the court's powers of management, on the one hand, with the wide discretion given to the courts under s.33…
and then, after reviewing the authorities, concluded:
"21. The court has management powers and the authority is clear that a failure to serve through oversight means that time for service is not extended. In my judgment, the reality is that s.33 of the Limitation Act 1980 cannot be used to put right the failure of the claimant's solicitors to get proceedings started, or, indeed, continued…
25. I appreciate Mr Roy's point about prejudice. It is difficult to imagine there could be any prejudice to the defendants in this case. They admitted liability, their argument is about the length of time and the future loss, as I understand it, that might or might not have been occasioned in this case. But, in my judgment, s.33 is for that class of cases where the claimant may be unaware of the nature or extent of his injuries or illness or his medical condition. It is a very different matter from the exercise of case management powers by the court. It is likely I would not have exercised my discretion in favour of the claimant."
Abuse of process
"I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as the unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."
"should be exercised only where the court is either satisfied that there has been an intentional and contumelious default – for example, disobedience of a peremptory order of the court – or that there has been inordinate and inexcusable delay" (at 1392G).
"To behave in such a way is in my judgment to treat the court with intolerable contumely. This is a matter which can properly be taken into account in the exercise of the court's discretion" (at 1395H).
Watkins LJ also said (at 1395F):
"A prospective litigant must be deemed to know that upon taking out a writ endorsed with a claim for monetary or other relief, his conduct of the action thereby brought into being will be governed thereafter by rules and orders of the court. A failure to conform to any one of these may cause him to be penalised even to the extent of having his action struck out."
The defendants rely upon the generality of those words. However, there is nothing in the judgments to suggest that it is open to strike out a case for abuse of process in the absence of intentional and contumelious default or inordinate and inexcusable delay. In Janov there were both.
"He argues, further, that the categories of conduct which is frivolous, vexatious or abusive of the process are never closed (and for that, as I would have thought, incontestable proposition he cited a well-known authority). This is an opportunity, he says, to demonstrate the truth of that, by backing the new regime with a stern use of the court's powers to expand the definition of abuse of process by condemning any attempts to renew an action which has deservedly suffered a discontinuance after the very generous period down to the guillotine date allowed under the rule has expired."
"The object of the new procedural regime, as counsel for the defendants have urged, is quite plain. It has been described in earlier cases. It is intended to encourage the expeditious conduct of litigation and strongly to discourage delay. But, as it seems to me, a plaintiff who for reasons of negligence, dilatoriness, lethargy or mistake fails to apply for a hearing date before the guillotine date and so suffers the consequences of Ord. 17, r. 11(9), cannot be treated as if he were guilty of wilful or contumacious disobedience. The rules do not vary the ordinary rules which the court has habitually observed, and nothing short of a clear provision should, in my judgment, deprive a plaintiff of what is otherwise a potentially important right."
"We think that the change in culture which is already taking place will enable courts to recognise for the future, more readily than heretofore, that a wholesale disregard of the rules is an abuse of process as suggested by Parker L.J. in Culbert v. Stephen G. Westwell & Co. Ltd.  P.I.Q.R P54.
While an abuse of process can be within the first category identified in Birkett v. James  A.C. 297 it is also a separate ground for striking out or staying an action (see Grovit v. Doctor at pp. 642-643) which does not depend on the need to show prejudice to the defendant or that a fair trial is no longer possible. The more ready recognition that wholesale failure, as such, to comply with the rules justifies an action being struck out, as long as it is just to do so, will avoid much time and expense being incurred in investigation [of] questions of prejudice, and allow the striking out of actions whether or not the limitation period has expired. The question whether a fresh action can be commenced will then be a matter for the discretion of the court when considering any application to strike out that action, and any excuse given for the misconduct of the previous action: see Janov v. Morris  1 W.L.R. 1389. The position is the same as it is under the first limb of Birkett v. James. In exercising its discretion as to whether to strike out the second action, that court should start with the assumption that if a party has had one action struck out for abuse of process some special reason has to be identified to justify a second action being allowed to proceed."
"34 For my part, I think that the time has come for this court to hold that the "change of culture" which has taken place in the last three years – and, in particular, the advent of the Civil Procedure Rules – has led to a position in which it is no longer open to a litigant whose action has been struck out on the grounds of inordinate and inexcusable delay to rely on the principle that a second action commenced within the limitation period will not be struck out save in exceptional cases. The position, now, is that the court must address the application to strike out the second action with the overriding objective of the Civil Procedure Rules in mind – and must consider whether the claimant's wish to have a "second bite of the cherry" outweighs the need to allot its own limited resources to other cases. The courts should now follow the guidance given by this court in the Arbuthnot Latham case."
The CPR 7.5/6 jurisprudence
"The merits of Mr Vinos' particular case are not relevant to that question…Criticism of Mr Vinos' solicitors in this case may be muted and limited to one error capable of being represented as small; but there are statutory limitation periods for bringing proceedings. It is unsatisfactory with a personal injury claim to allow almost three years to elapse and to start proceedings at the very last moment. If you do, it is in my judgment generally in accordance with the overriding objective that you should be required to progress the proceedings speedily and within time limits. Four months is in most cases more than adequate for serving a claim form. There is nothing unjust in a system which says that, if you leave issuing proceedings to the last moment and then do not comply with this particular time requirement and do not satisfy the conditions in r.7.6(3), your claim is lost and a new claim will be statute-barred. You have had three years and four months to get things in order. Sensible negotiations are to be encouraged but protracted negotiations generally are not."
"27. This appeal is, of course, centrally concerned with limitation. The relevant time period after which the present action may not be brought is three years from the date on which the cause of action accrued, that is the date of the accident. For relevant purposes, the claim is brought by issuing the claim form. This was done in the present case just before the expiry of the three-year limitation period. In addition, the claim form has to be served in accordance with the rules. A failure to do so which cannot be rectified by one means or another will mean that the claim cannot proceed and often that a new claim will be statute-barred. Those who delay serving their claim to the last moment risk disaster."
"Now that the disputed interpretations of the Civil Procedure Rules have been resolved by Godwin's case and by this judgment, there will be very few (if any) acceptable excuses for future failures to observe the rules for service of a claim form. The courts will be entitled to adopt a strict approach, even though the consequences may sometimes appear to be harsh in individual cases."
"35 It follows that this is a case where there is no reason for the failure to serve other than the incompetence of the claimant's legal representatives. Although this is not an absolute bar, it is a powerful reason for refusing to grant an extension of time. Despite this, Mr Gore submits that an extension of time should be granted. In relation to the application of the overriding objective, he relies on the following factors. First, the claim is very substantial. Secondly, the issues in the case were identified early on, so that a short extension of time would not undermine the case management process. Thirdly, the extension of time would not put the parties on a more or less equal footing than they would have been if the extension were not granted. Fourthly, the extension would not increase the cost of the litigation. Fifthly, it would be disproportionate to refuse the extension. Finally, the defendant has not suffered any prejudice as a result of the extension, since at the date of the claimant's application, the defendant had not yet acquired an accrued limitation defence.
36 We are in no doubt that the time for serving the claim form should not be extended in this case. The absence of any explanation for the failure to serve is, on the facts of this case, decisive. Sadly, the errors on the part of Mr Pike were particularly egregious. The other factors identified by Mr Gore are not sufficient to outweigh the complete absence of any reason which might go some way to excusing the failure to serve in time. If we were to grant an extension of time in the present case, it seems to us that the rule stated in CPR r. 7.5 would cease to be the general rule. Moreover, there would be a real risk that statements made by this court about the importance of the need to observe time limits would not be taken seriously. That would be most unfortunate."
"the court is unlikely to grant an extension of time for service of the claim form under CPR r 7.6(2) if no good reason has been shown for the failure to serve within the four months' period."
"19 Whereas, under the previous law, a plaintiff who was unable to show a good reason for not serving in time failed at the threshold, under the CPR a more calibrated approach is to be adopted. If there is a very good reason for the failure to serve the claim form within the specified period, then an extension of time will usually be granted…The weaker the reason, the more likely the court will be to refuse to grant the extension.
20 If the reason why the claimant has not served the claim form within the specified period is that he (or his legal representative) simply overlooked the matter, that will be a strong reason for the court refusing to grant an extension of time for service. One of the important aims of the Woolf reforms was to introduce more discipline into the conduct of civil litigation. One of the ways of achieving this is to insist that time limits be adhered to unless there is good reason for a departure. In the Biguzzi case  1 WLR 1926 Lord Woolf MR said, at p 1933: "If the court were to ignore delays which occur, then undoubtedly there will be a return to the previous culture of regarding time limits as being unimportant."
21 It is easy enough to take the view that justice requires a short extension of time to be granted even where the reason for the failure to serve is the incompetence of the claimant's solicitor, especially if the claim is substantial. But it should not be overlooked that there is a three-year limitation period for personal injury claims, and a claimant has four months in which to serve his or her claim form. Moreover, the claim form does not have to contain full details of the claim. All that is required is a concise statement of the nature of the claim: see CPR r 16.2(1)(a). These are generous time-limits."
Dyson LJ then referred to what May LJ had said in Vinos, cited above.
The post-Horton cases
"91 The Defendants do not submit, in this case, that the mere issuing of a second claim was itself an abuse. Their argument is based entirely on the Securum principle. This requires the Court to consider whether the second claim is an appropriate use of the Court's resources in circumstances where she has already had a share of those resources in the first claim and where her right to bring a second claim must be weighed in the balance with the rights of other litigants to use those resources. There is, in my view, nothing to prevent the Court having regard to those public interest considerations under section 33 which, as was said in Firman and re-emphasised in Horton, gives the Court the widest discretion in deciding whether to allow a claim to proceed, upon which further judicial fetters should not be imposed…
93 In any event as Mr Oppenheim pointed out Parliament has decided, through section 33, that the Court should have an unfettered discretion, subject only to considering those matters spelt out in sub-section (3), in deciding whether to allow a personal injury claim to proceed, notwithstanding the fact that it has been brought out of time. Section 33 therefore provides the means by which the Court protects itself from abuse arising from such claims. The Defendants acknowledge that, even if they succeeded in striking out this claim as an abuse, a further, professional negligence claim against her previous solicitors, in which the Claimant will be allocated a further share of Court resources, will follow. The real question is whether the Claimant should be permitted to continue with this claim against these Defendants. That question should be determined, in my judgment, under section 33 and not as a separate question relating to abuse of process."
"57 It appears to me that there is now a long line of authority to support the proposition that, in a case where the defendant has had early notice of the claim, the accrual of a limitation defence should be regarded as a windfall and the prospect of its loss, by the exercise of the section 33 discretion, should be regarded as either no prejudice at all (see Firman v Ellis  QB 886) or only a slight degree of prejudice: see Donovan v Gwentoys Ltd  1 WLR 472. It is true that, in Thompson v Brown  1 WLR 744, Lord Diplock said that the accrual of the defence might be regarded as a windfall only where the delay in issuing proceedings was short. However, with great respect, it does not seem to me that the length of the delay can be, of itself, a deciding factor. It is whether the defendant has suffered any evidential or other forensic prejudice which should make the difference."
"11. I should say at the outset that there is, as it seems to me, a slight tension between CPR 7.6 and its stringent terms not entitling a court to extend time in the first action even if no forensic prejudice has been suffered by a defendant, and having the power nevertheless to allow a second action to be commenced by using its discretion under s.33. But since the decision in Horton there is no doubt that there have been cases including McKay v Hamlani (considered by the Court of Appeal with Cain v Francis  3 WLR 551) in which time has been extended under s.33 in second actions where CPR 7.6 prevented an extension of time for service of a first action. Thus it cannot be said that in a CPR 7.6 case an extension of time for bringing a second action should never be granted, but it seems to me to be a relevant context and to at least show that it should not be easy for a claimant to commence a second action and obtain a disapplication of the limitation period under s.33."
"52 It is clear beyond doubt that the claim for breach of contract is not yet time-barred and will not be time-barred for several years. There is no basis for a contrary argument and the contrary does not seem to have been argued. Where there is doubt as to whether a claim has become time-barred since the date on which the claim form was issued, it is not appropriate to seek to resolve the issue on an application to extend the time for service or an application to set aside an extension of time for service. In such a case, the approach of the court should be to regard the fact that an extension of time might "disturb a defendant who is by now entitled to assume that his rights can no longer be disputed" as a matter of "considerable importance" when deciding whether or not to grant an extension of time for service: see Hashtroodi's case, para 18.
53 But where it is clear that an extension of time beyond the four months' period will not extend the time to a date when the claim has become time-barred, the considerations are quite different. In such a case, an extension of time does not deprive the defendant of any limitation advantage. Nevertheless, in our view the fact that a claim is clearly not time-barred is a relevant consideration to be taken into account in favour of the claimant when the court decides whether to grant an extension of time. But it is not determinative.
54 It is tempting to ask: what is the point in refusing to extend the time for service if the claimant can issue fresh proceedings? But service of the claim form serves three purposes. The first is to notify the defendant that the claimant has embarked on the formal process of litigation and to inform him of the nature of the claim. The second is to enable the defendant to participate in the process and have some say in the way in which the claim is prosecuted: until he has been served, the defendant may know that proceedings are likely to be issued, but he does not know for certain and he can do nothing to move things along. The third is to enable the court to control the litigation process. If extensions of time for serving pleadings or taking other steps are justified, they will be granted by the court. But until the claim is served, the court has no part to play in the proceedings. A key element of the Woolf reforms was to entrust the court with far more control over proceedings than it had exercised under the previous regime. The rules must be applied so as to give effect to the overriding objective: this includes dealing with a case so as to ensure so far as is practicable that cases are dealt with expeditiously and fairly: CPR r 1.1(2)(d). That is why the court is unlikely to grant an extension of time for service of the claim form under CPR r 7.6(2) if no good reason has been shown for the failure to serve within the four months'period.
55 Thus, there are good reasons why the court should scrutinise with care applications to grant an extension of time for service of the claim form. If an application for an extension of time is made after the end of the four months' period, the application must be dismissed unless the three conditions specified in CPR r 7.6(3) are satisfied. In such a case, the fact that the claim is clearly not yet time-barred is irrelevant. It would be strange if, where an application is made before the end of the four months' period, the fact that the claim is clearly not time-barred means that the court must grant an extension of time. In our view, the better view is that, where the application is made before the end of the four months' period, the fact that the claim is clearly not yet time-barred is a relevant consideration. The district judge was right on this point."
The section 33 discretion in the case of Mr Dixie's claim
Lord Justice Longmore :
Lord Justice Aikens :