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Warning shot to litigators: Don’t leave service of claim form too late, even if you are arranging a mediation

by | Aug 27, 2022 | Uncategorized

Starting a claim can be delayed if the parties expressly agree

The High Court has refused to extend time for service of a claim form outside the four month period in a case where the parties were arranging a mediation.

In Lonsdale & Ors v Wedlake Bell Llp & Ors [2022] EWHC 2169 (QB) (19 August 2022) which was a professional negligence claim matter –
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2022/2169.html&query=(Mediation) – the Court heard how

  1. “The July Claim Form was sent to [defendant] by [Claimant] by email on 20 July 2021. The email stated explicitly that the Claim Form was not being formally served. The parties agreed to a stay on any substantive steps in the litigation and began discussions about mediation.
  2. The four-month window for service of the Claim Form under CPR r. 7.5 (1) was due to expire on 12 November 2021. In September 2021, the parties agreed an extension of time for service pursuant to CPR r 2.11. The revised deadline was 1 December 2021. However, the July Claim Form was not in fact served until 19 January 2022. A further claim form (‘the December Claim Form‘) was issued on 16 December 2021. The December Claim Form has the same parties and contains the same substantive claims as the July Claim Form. 
  3. The issue before the Court is essentially whether the Claimants should be confined to proceeding with the December Claim Form or whether they are entitled to rely on the July Claim Form.”

The Claimant’s solicitor even sent a copy of the Claim Form to the Defendant’s solicitor informally. Formal service of a Claim Form is required in order to make a claim valid. The parties did agree a stay for mediation but were too wrapped up in trying to arrange a mediation and the time for serving the Claim Form passed.

The sequence of events was as follows according to the judgment:

  1. “On 12 July 2021, RPC sent AES a revised draft standstill agreement and identified QBE UK Limited as the relevant insurer for the claim. 
  2. On 20 July 2021, instead of responding to the suggested changes to the draft standstill agreement, AES informed RPC by email that they had issued proceedings on 12 July 2021. This was said by AES to have been “to safeguard against limitation expiring”. A copy of the sealed July Claim Form and the accompanying Particulars of Claim were attached to the same email. However, AES made it clear that, although the claim form had been sent by email to RPC, “this was not by way of service”. No response pack was sent. It was thus clear that AES did not want RPC to acknowledge service or serve a Defence. Instead, AES proposed a series of steps leading up to a mediation in September or October. The email concluded (with emphasis added):
  3. RPC responded by email on 4 August 2021. The email contained an agreement in principle to set a timetable of steps leading up to a mediation. RPC proposed a minor revision to the timetable suggested by AES. The email also said this (again with emphasis added):
  4. In their response to this email, AES agreed the proposed revised mediation timetable. In response to the suggestion that it might be necessary to agree an extension of the time for service of the July Claim Form, AES said this:
  5. RPC and AES proceeded to correspond about mediators and dates for a mediation.AES did not serve the July Claim Form.
  6. In an email sent on 14 September 2021, AES proposed an extension of time for service of the July Claim Form from 12 November 2021 to 1 December 2021. A draft consent order was attached to that email. A signed version of the consent order was returned by RPC on 30 September 2021. The consent order made clear that it was intended to be an agreement to extend time under CPR 7.5(1). The consent order was subsequently signed by AES and submitted to court for sealing. 
  7. In an email sent on 12 October 2021, AES chased RPC for mediation dates and whether they were authorised to accept service of the July Claim Form. The email concluded: 
  8. Following a chasing email sent on 27 October 2021, RPC responded on 1 November 2021 as follows: 
  9. Upon receipt of this email, it ought to have been clear to AES that a mediation would not be possible before the agreed extended deadline for service of the July Claim Form. The Claimants had four weeks to consider their options. 
  10. The principal options open to the Claimants at this stage were:
  11. It was obvious from the tone and content of RPC’s email of 1 November that the Defendants’ preferred course was to agree a date for a mediation in January 2022 and to agree a further extension for service of the July Claim Form. 
  12. AES did not respond to the suggested new date for mediation or to the suggestion of a further extension to the date for service of the July Claim Form. “

The Court decided that it would not allow the Claimant to dispense with having served the Claim Form. This does seem rather harsh as the Courts are generally meant to encourage ADR and mediation.