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Articles | Wed 24th Aug, 2022
Dispute Resolution analysis: In a recent decision the Court of Appeal reconsidered the rules around applying for extensions of time for service of claim forms outside the jurisdiction where the applicable limitation period has run out. The court decided that the Admiralty Registrar had not been wrong to allow an extension of time in all the circumstances, and that the Admiralty Judge had been wrong to find that the original decision fell outside the generous ambit of decisions available to a reasonable judge. The court allowed the claimant’s appeal and set aside the judge’s order allowing the appeal from the registrar. The decision underlines the very wide discretion of a judge at first instance in dealing with prospective applications for extensions of time for service of the claim form, and suggests that in future defendants will have difficulty in challenging such extensions even where they were obtained by non-disclosure of relevant facts. Written by Sarah Prager, barrister at 1 Chancery Lane.
Silverman v Ryanair DAC [2022] EWCA Civ 1037 (judgment handed down 27th July 2022)
What are the practical implications of this case?
The decision of the Court of Appeal appears to place less significance than previous authorities on the need for those representing claimants to make active attempts to serve proceedings towards the beginning or middle of the primary lifetime of the claim form, and not with only less than a month to go before it expires. It is also unusual in the lack of weight given to the fact that the limitation period in the underlying claim had expired (even though the claim had been issued within that period), and in the court’s apparent lack of concern over the findings of fact as to non-disclosure in the ex parte application. However, it is suggested that it would be dangerous for practitioners to rely on the decision in delaying service of the claim form or in taking a leisurely approach to disclosure on ex parte applications; the judge at first instance might not be as tolerant as the Court of Appeal in ST and, if permission were to be refused on such grounds, it is likely that any such refusal would also fall within the ambit of the court’s discretion at first instance. To this extent, the practical implications are likely to be limited, in that prudent litigators are unlikely to place reliance on the decision in favour of serving timeously and making full and frank disclosure on ex parte and other applications.
What was the background?
The underlying claim in ST was brought pursuant to the exclusive jurisdiction afforded by the Athens Convention 2002 (relating to the carriage of passengers), which has a non-extendable limitation period of two years. The claim was issued almost two years after the incident said to give rise to the claim. Thereafter the claimant’s solicitor requested confirmation that the defendant, a foreign company, would agree to be served with proceedings within the jurisdiction. The defendant did not agree to this and, some three weeks before the expiry of the claim form, the claimant’s solicitors began to make arrangements to serve the claim form. It was concluded that the Foreign Process Section would not be able to serve within its lifetime so an agent was retained to effect service. In the event, however, the agent was unable to employ a court bailiff to serve the claim form in the usual way, but was quoted £2,000 to effect service within time, a quote which they rejected. The claimant’s solicitors sought an extension of time for service, which they obtained ex parte (not having informed the registrar of the expiry of the limitation period or of the fact that they could in fact have effected service at a cost of £2,000). The defendant applied to set aside this decision but was unsuccessful. It then appealed successfully, the judge finding that the claim form could and should have been served in time. The claimant appealed this decision on a second appeal. The Court of Appeal granted permission to appeal on the grounds that it was surprising that a company pursuing business activities within this jurisdiction should have exercised its right to be served in the country of its domicile.
What did the court decide?
The Court of Appeal echoed the surprise of the judge who gave permission to appeal and also emphasised that the defendant had not responded immediately to the claimant’s solicitor’s request for confirmation that it could be served within the jurisdiction. It found that the claimant’s solicitor’s decision to wait until three weeks before the expiry of the lifetime of the claim form before taking active steps to serve it could not be said to be unreasonable; this ought to have provided ample time for service. The decision not to incur a ‘colossal’ fee of £2,000 in serving within the lifetime of the claim form was not unreasonable either. Although the registrar had not expressly been told that the limitation period had expired and that therefore the claimant should have a good reason for its failure to serve within the initial lifetime of the claim form, he did not need to be told of this, since he could see it for himself. In the circumstances the judge was wrong to find that the registrar’s decision fell outside his generous discretion and his order was set aside. Practical difficulties in serving could amount to a good reason for failure to serve the claim form within its lifetime, and the registrar was entitled to make the original order extending time for service. Service was therefore valid and the claim should continue.
Case details
This article was first published by Lexis Nexis, August 2022.
