Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HON.MR.JUSTICE RAMSEY
Between :
IMPERIAL CANCER RESEARCH FUND CANCER RESEARCH UK | Claimants |
- AND - | |
OVE ARUP & PARTNERS LIMITED OVE ARUP & PARTNERS INTERNATIONAL LIMITED | Defendants |
Rónán Hanna (instructed by Reynolds Porter Chamberlain LLP) for the Claimants
Christopher Lewis (instructed by Clare Bristow, Arup Legal group) for the Defendants
Hearing dates: 21st May 2009
Judgment
The Hon. Mr. Justice Ramsey :
Introduction
This is an application by the Defendants to set aside an extension of time to serve a claim form which was granted on 20 April 2009 extending the time for service by three months until 22 July 2009.
The claim form was issued on 22 December 2008 and on 15 April 2009 the Claimants applied under CPR 7.6(2) for an extension of the time for service until 22 July 2009 on grounds set out in the First Witness Statement of Daniel Preston. That extension was granted.
By a letter dated 1 May 2009 the Claimants served the application and Order on the Defendants and drew their attention to the provisions of CPR 23.10 which permitted an application to be made to set aside or vary the Order.
On 14 May 2009 the Defendants made an application to set aside the Order of 20 April 2009. The Claim Form has not been served on the Defendants.
The application in this case potentially gave rise to a number of procedural issues. Sensibly, at the hearing, the procedural objections were not maintained and to the extent that the Defendants’ application to set aside the order was made outside any applicable time limit under CPR 23.10, the Claimants consented to the necessary extension of time.
As a result the issue is whether the Order made on 20 April 2009 should be set aside. It is common ground that an application to set aside an order obtained without notice involves a rehearing of the issue and not a review of the decision made on the without notice application: Hashtroodi v Hancock [2004] 1 WLR 3206 at [33].
Applications under CPR r 7.6
CPR r 7.6 provides:
“(1) The claimant may apply for an order extending the period for compliance with rule 7.5.
(2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made –
(a) within the period 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 the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –
(a) the court has failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable 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 compliance with rule 7.5 –
(a) must be supported by evidence; and
(b) may be made without notice.”
The provisions of CPR 7.6 and, in particular, the proper approach to an application to extend the period within which the claim form may be served when that application is made within the period set out in r.7.6(2) has been considered by the Court of Appeal in Hashtroodi v Hancock [2004] 1 WLR 3206; Steele v Mooney [2005] 2 All ER 256; Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806 and Collier v Williams (Leeson v Marsden, Glass v Surrendran) [2006] EWCA Civ 20.
These decisions obviously depend on the particular facts but contain some general guidance on the approach of the courts to an application to extend time for service of a claim form:
The general rule is that a Claim Form must be served within 4 months after date of issue: CPR 7.5(1);
In relation to an application under CPR 7.6.(2), that rule does not impose any threshold condition on the right to apply for an extension of time. The discretion to extend time should be exercised in accordance with the overriding objective identified in CPR 1.1: Hashtroodi at [17], [18] and [19].
In order to deal with an application under CPR 7.6(2) justly it will always be relevant for the court to determine and evaluate the reason why the claimant did not serve the claim form within the specified period: Hashtroodi at [22]
The preconditions in CPR 7.6(3) do not apply to 7.6(2) but those requirements will always be relevant to the exercise of discretion on an application under CPR 7.6(2) but the fact that the conditions are not satisfied is not necessarily determinative of the outcome of a CPR 7.6(2) application: Collier at [87];
The matters which the Court may take into account include the following in relation to the reason why the Claimant has not served the claim form within the specified period:
Whether the claim has become statute barred since the date on which the claim form was issued is a matter of considerable importance.
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: Hashtroodi at [18] citing Zuckerman on Civil Procedure (2003) at paragraph 4.121; Hoddinott at [52].
Where the application is made before the end of the four month period the fact that the claim is clearly not yet statute barred is a relevant consideration: Hoddinott at [52], [53].
Whether before the expiry of the four month period the nature of the claim was brought to the attention of the defendant: Hoddinott at [57].
Whether a party was in a position where it could not determine whether the claim had real prospects of success and could not responsibly proceed against the defendant without an expert report which was delayed awaiting a response to proper requests for information from the defendant’s solicitors: Steele at [33].
In considering whether to set aside an order granting an extension of time it is not a relevant consideration that the claimant has proceeded in reliance of the extension of time granted on the ex parte application: Hoddinott at [48] to [50].
In relation to the reason why the claim form has not been served, then:
Where the Claimant has taken all reasonable steps to serve the claim form, but has been unable to do so, the Court will have no difficulty in deciding that there is a very good reason for the failure to serve: Hashtroodi at [19].
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: Hashtroodi at [20].
Whilst the view could be taken that justice requires a short extension of time to be granted even when the reason for the failure to serve is the incompetence of the claimant’s solicitor, especially if the claim is substantial, there are limitation periods and a claimant has four months in which to serve the claim form, which does not have to contain full details but only a concise statement of the nature of the claim: Hashtroodi at [21].
As I have said, the decisions depend on the particular facts of each case but they provide illustrations of the facts that fall in favour or against the grant of an extension of time.
In Hashtroodi, the claimant was injured in a road traffic accident on 21 January 2000. His Solicitors wrote a letter before action to the defendant on 14 June 2000 at the correct address. It was responded to by claims handlers acting for the defendant’s insurers. Correspondence was then exchanged up to 28 November 2000. On 13 January 2003 the claim form was issued. The next communication was on 25 April 2003 when the solicitors wrote to say they had issued a claim form which they would be serving and asked if the claims handlers intended to instruct solicitors to accept service. That letter was sent to the registered office of the claims handlers who only received it on 1 May 2003. There was a telephone call on 8 May 2003 but no Solicitor was nominated. On 9 May 2003, one working day before the claim form expired, an application was successfully made to extend time for service to 3 June 2003.
The reason given for seeking an extension of time was that the extension would allow the solicitor to chase the insurers for a few more days in the hope that they would nominate solicitors. It was also said that if the insurers did not nominate solicitors the claim form could be served personally or at the last known address.
Dyson LJ giving the judgment of the court said: “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.”
In Steele v Mooney the claimant underwent an operation in hospital on 9 May 2000 and suffered a personal injury. She consulted Solicitors on 22 April 2003 and the claim form was issued on 6 May 2003. On 13 August 2003 an application was made to extend time for four months and this was granted. The reason set out in the evidence was as follows:
“We wrote to the various treatment providers and record holders on 28 April 2003. We had great difficulty in finding an expert who would prepare a report for liability before the beginning of September. We did not receive the first and second defendants' records until the beginning of July. We were not obviously able to instruct our expert until these records, especially the first defendant's records, were received. An expert (consultant gynaecologist) is currently preparing a liability report, although he does not feel able to comment totally until the missing records are obtained. As stated previously, a causation report and then condition and prognosis report will need to be obtained on top of the liability report if it is favourable. We do not consider that the above can be provided to us in a shorter period of time than four months”.
A further application was made in December 2003 and granted until January 2004. It was then decided to proceed against only the first Defendant. There were other procedural events not relevant for these purposes but on the question of whether an extension of time should be granted Dyson LJ giving the judgment of the court said at [33]:
“We are in no doubt that the applications for an extension of time for service of the claim form should have been allowed if they had been made on 15 August and 10 December 2003. The claimant had a good reason for not serving the claim form within the period prescribed by rule 7.5(2) and for requiring a further few weeks thereafter. The claimant's solicitors behaved sensibly and responsibly in not serving proceedings when they did not know whether the claimant had a claim which had real prospects of success against any, and if so which, of the three defendants. They could not responsibly proceed against any of the defendants without the support of an expert, and the reason why they needed the extension of time was that they were awaiting the expert's report. The report was delayed because the first defendant himself had not responded to proper requests for his clinical notes. The situation was quite different from that which often arises where the claimant seeks an extension of time for service of the claim form because he or she wants further time to prepare a schedule of loss. In the present case, the outstanding information went to the very heart of the claimant's case. Without the expert's report, she did not know whether she had a viable case. In these circumstances, we think that both extensions of time should have been granted. We do not find it at all surprising that those representing the second and third defendants in the present case understood that the claimant was seeking an extension of time for service of the claim form, and did not object to it.”
In Leeson v Marsden (sub nom Collier v Williams) the claimant alleged that whilst in hospital in November and December 2000 she suffered personal injury because of the negligence of a doctor and the hospital. On 27 August 2002 her Solicitors sent a letter of claim under a pre-action protocol. The hospital sent a letter of reply. The doctor did not respond. On 24 November 2003 the Claim Form was issued. On 9 March 2004 an application was made to extend the time for service until 20 September 2004 which was refused on 23 March 2004. A further application was made to obtain a 7 day extension on 6 April 2004 which was granted.
Dyson LJ said at [128] and [129]:
“128. In our judgment, there was no good reason for the failure by the claimant’s solicitors to serve by 24 March. The witness statement by the solicitor who was dealing with the case on behalf of the claimant, makes clear that she knew that the claim form had to be served by 24 March. At para 6, she gave the reason why she was applying for an extension of time. It was because she had received no substantive response from the first defendant to the clinical negligence protocol letter of claim….
129. In our judgment, the failure of the first defendant to respond to the letter of claim was no reason at all for not serving the claim form. It may have been a sufficient reason for seeking an extension of time for service of the particulars of claim, although even that is questionable.”
In Glass v Surrendran (sub nom Collier v Williams) the claimant was injured in a road traffic accident on 5 September 2001. Following a letter of claim in November 2001 liability was admitted. On 3 September 2004 the claim form was issued. On 21 December 2004 an application was made to extend time for service by one month. This application was refused on 4 January 2005. A further application was made to set aside that order and on 13 January 2005 the time was extended to 2 February 2005.
The grounds for not serving the Clam form were said to be that the papers had been with counsel to draft particulars of claim and when they were returned the claimant had to approve, sign and return the particulars of claim; that the defendant had been served with documents relating to both general and special damages by no later than 16 December 2004 and that, at the time of the issue of the claim form, there was no accountancy evidence available; that the accountant’s report did not arrive until after 29 November 2004; that the claimant’s approval to that report had not been obtained until 15 December 2004 and that the particulars of claim drafted by counsel had been sent to the claimant on 23 December 2004.
Dyson LJ said at [148] and [149]:
“… the apparent justification advanced on behalf of the claimant, namely that his solicitors were awaiting receipt of the accountant’s report, is not a reason for delaying service of the claim form. In the first place, if that point could justify any extension of time, it would be an extension for the service of the particulars of claim, not the service of the claim form
…
Quite apart from this, although the accountant’s report may have been received later than the claimant’s solicitors had hoped, it was received more than a month before the time for the service of the claim form expired. Further, the particulars of claim had actually been drafted by counsel some two weeks before the expiry of the 4 months period for service of the claim form. Accordingly, the matters relied on by the claimant as a reason for not serving the claim form in time would not, in our view, even have justified an extension of time for service of the particulars of claim.”
In Hoddinott there was a claim under a deed entered into in October 1999. On 22 May 2006 the claim form was issued. On 13 September 2006 an application was made for an extension of time for service of the claim form to 22 November 2006.
The grounds for the application were that an extension of time would enable the Claimant’s claim to be fully particularised and for any resulting litigation to be conducted more economically and expediently. The witness evidence said that: “Without an assessment of the cost of the remedial works and the losses that will be caused to the Claimant’s business, it will not be possible to produce particulars of claim that will promote settlement of the claim. As the court will have seen, it seems likely that liability will not be disputed and that the only issue will be as to the proper assessment of the Claimant’s loss. I decided that serving particulars of claim without the requisite figures would be to risk incurring litigation costs unnecessarily.”
Dyson LJ giving the judgment of the Court said at [41]:
“The reason given by Mr Paterson was stated in Leeson’s case to be “no reason at all” for not serving the claim form. It is true that it is possible to think of more egregious examples of failure to serve. Mr Patterson did not overlook the need to serve within the 4 months period. He stated in terms in his witness statement that, if the application to extend time was dismissed, he would serve the claim form before the end of the 4 months’ period. He took the trouble and incurred the expense on behalf of his client making an application without notice to extend time. But in out view, he made a serious error of judgment.”
The facts of this case
The claim in this case arises from allegations of water ingress into the ground floor and basement of a new building constructed at the claimants’ research laboratory centre at Clare Hall in Potters Bar. The claimants say that the building was completed in April 2003. The claimants also say that the architects engaged for the building, Sheppard Robson, in turn engaged the defendants who carried out certain engineering and design services, including a geotechnical desk study which reported that there were no shallow ground surface water issue at the site. I make no findings on these matters at this stage. The claimants are also proceeding against the architects and the contractors.
The application under CPR 7.6(2) dated 15 April 2009 was supported by the first witness statement of Daniel Preston. He has produced a second witness statement dated 20 May 2009 for the purpose of this application and three witness statements have been produced by Clare Barstow on behalf of the defendants.
In the application of 15 April 2009 the grounds for making the application were said to be that: “…the Claimants require additional time in which to obtain the information necessary to properly particularise the claim.”
Mr Preston elaborated on this in his initial witness statement as follows:
At paragraph 3 to 5:
“3.The Claimants appointed Sheppard Robson to carry out the design of a new building at a research laboratory centre at Clare Hall in Potters Bar in or around March 2001. Sheppard Robson subsequently appointed the Defendants to carry out mechanical and electrical services, geotechnical engineering, structural engineering design and acoustic advice pursuant to a sub-consultancy agreement.
4. Prior to the tendering of the works, in July 2001, the Defendants carried out a geotechnical desk study of the site, which reported that there was no shallow ground surface water issues expected at the site, which was described as a “non- aquifer”.
5. Work commenced on the construction around 18 March 2002, and practical completion was certified on 11 April 2003. There have been problems with water ingress into the ground floor and basement of the building, including a severe leak in February 2004. Some rectification works have taken place, but have failed to adequately address the cause of the water ingress, with the latest flood occurring in April 2008.”
At paragraphs 9 to 13:
“9. Shortly before issuing proceedings, the Claimants engaged an independent engineering expert to advise on the causes of the water ingress and the likely remedial works required. To date that expert has been able to undertake a preliminary investigation based on a visit to the site. The claimants had hoped that this expert advice would have enabled them to serve a properly particularised claim within the stipulated time limits. However as a result of the expert’s advice it has now become apparent that subterranean opening up works are required in order to enable the claimants to fully particularise their case.
10. The building is currently in use by the Claimants as a research laboratory. The proposed opening up works will create a significant functional burden for the Claimants and therefore some time is required in order to make the necessary and proper arrangements. Some time will also be required for undertaking this investigation and for the Claimants’ expert to advise them of his findings. It is expected that the opening up can commence later this month.
11. The Claimants would also note that the preparation of their case has been obstructed by the Defendants’ failure to provide documentary evidence upon reasonable request. The Claimants wrote to both Defendants on 3 October 2008 to request drawings and documentation that are necessary to the investigation of the cause of the water ingress and to the preparation of the Claim. Correspondence was entered into and a copy of the sub-contract agreement was received from the Defendants in late October 2008. Despite requests no further documents have been received to date.
12. The Claimants consider that it is preferable that the additional time afforded by an extension of the period for service of the Claim Form will enable them to produce full and proper Particulars of Claim, thereby avoiding the need for amendments at a later date, which would merely create additional costs for all of the Parties.
13. The service of the claim form by 22 April 2009 without fully particularised details would be premature and could lead to one or both of the Defendants incurring wasted costs. The Claimants would almost certainly then seek leave of the Court to amend the particulars of claim.”
In his second witness statement Mr Preston referred to the fact that a second application also on 15 April 2009, was made in respect of another Claim Form against the architect, Sheppard Robson and the contractor, Willmott Dixon Construction Ltd. He repeated what he said in paragraph 8-13 of his previous witness statement. He explained that a claim form had also been issued against the architect and contractor and added:
At paragraph 13:
“The Claimants were at the time convinced that the grounds on which they based the application provided sufficient justification for an extension of time and they remain so convinced. The Claimants were aware of the nature of the defects that had materialised at the laboratory and believed that these had been caused or alternatively contributed to by errors in the design of the works. As the Defendants had acted as engineers with a design responsibility, it was probable that they had some liability for the deficiencies in the design of the structure that have caused the current water ingress problem.”
At paragraph 16:
“At the time for service of both Claim Forms approached, the Claimants’ expert had still not seen the necessary project documentation and designs (on account of the behaviour of the Defendants) and, although he had undertaken an inspection of the building and prepared an initial report, he had advised that extensive subterranean excavations and further documents would be required to specify the nature of the problem and liability for the breaches. In the circumstances it would not have been sensible for the Claimants to proceed to serve the First Claim Form on the Defendants, without knowing the particulars of the design breaches levelled against the Defendants by the expert. At the time it appeared as though a considerable period would be required for arranging the subterranean excavation of this working laboratory, performing those works, preparing a written report and for a discussion of the findings between the expert and the Claimants’ legal representatives.”
At paragraph 18:
“By way of an update on the progress of the Claimants’ expert, the expert has now undertaken an invasive investigation of the condition of the water-resisting membrane system installed to the junction of the reinforced concrete basement walls and cavity wall construction. That investigation confirmed shallow excavation adjacent to the building in three areas to expose the top of the concrete wall and the water-resisting membrane, together with the removal of a number of courses of brickwork from the outer leaf of the cavity wall construction. This enabled the observation of the quality of the installation of the membrane across the basement wall and the inner leaf of the cavity wall up to the damp-proof course installed above ground level. A consolidated report has been prepared, but the expert has now been instructed to consider the documents recently provided by the Defendants to evaluate whether they have any impact upon his opinions. The expert expects to be in a position to respond during the course of next week.”
In summary, the position as described by Mr Preston’s statements in these and other passages is that the defendants were engaged as sub-consultants to Sheppard Robson who were the architects for the new building for the Claimants. The defendant carried out a geological desk study on July 2001 reporting on the ground water. The building was constructed between 18 March 2002 and 11 April 2003. There were water ingress problems in February 2004 and some remedial works were carried out but failed to address the problem, with the latest flooding in April 2008.
On 3 October 2008 Mr Preston wrote to the defendants and said that the claimants were investigating the cause of water ingress within the basement and asked for copies of the contract documents and a complete set of as-built drawings. After a telephone conversation, a copy of the sub-consultancy agreement was provided on 30 October 2008 and Ms Bristow said that the defendants were retrieving the project drawings from the archives. She said that it was unlikely that they had the Building Contract or as-built drawings and she understood that the claimants’ solicitors had been in touch with the architect and contractor regarding those documents.
On 21 November 2008 Mr Preston followed up the matter by writing to Mr Fellingham who had been the defendants’ project manager for the building asking if there had been any progress in retrieving the documents. He responded to say that the defendants were still looking and waiting to receive further information from the archives. On 30 April 2009 the defendants sent Mr Preston copies of drawings which they had located.
The claim form was issued on 22 December 2008 by which time the claimants had engaged an independent expert to advise on the causes of water ingress and building remedial works. By 15 April 2009 the expert had undertaken a preliminary investigation based on a visit to site but it had become apparent that subterranean opening-up works were required. These were due to commence in April 2009 and have now been undertaken. They enabled the detail and quality of the basement waterproofing construction to be observed. A report was then prepared and the expert was considering the documents sent by the defendants on 30 April 2009 and expected to report by the end of May 2009.
Submission of the parties
Mr Christopher Lewis, who appears on behalf of the defendants, says that the only reason given by the claimants for the failure to serve the claim form by 22 April 2009 was that they needed further time to enable full particularisation of their case. He relies on what is set out both in the application notice itself and in paragraphs 8, 9, 12 and 13 of Mr Preston’s first statement.
He submits that this argument has been considered and rejected in the decisions in Leeson v Marsden (waiting for a response to the letter of claim to finalise the particulars of claim); Glass v Surrendran (waiting for an expert’s report to finalise particulars of claim) and Hoddinott (waiting for particulars of loss to finalise the particulars of claim). He submitted that, as in those cases, the correct approach here would have been for the claimants to serve the claim form and seek to agree or apply for an extension of time to serve Particulars of Claim.
Mr Lewis also points to the fact that, on the claimants’ own case, the primary limitation period in relation to the design of the works has expired and the cause of action in respect of failure to review the design will be likely to have expired given that practical completion was certified on 11 April 2003.
In relation to Mr Preston’s further evidence contained in his second witness statement, Mr Lewis says that this differs in content and emphasis from the first witness statement and that the court should approach those changes with caution, particularly given that the evidence now appears to align the reasons for seeking the extension with those accepted by the Court of Appeal in Steele v. Mooney.
As a result, the defendants submit that the order of 20 April 2009 should be set aside.
Mr Rónán Hanna, who appears on behalf of the claimants, submits that the reason for seeking an extension of time for the service of the claim form was the need for the claimants to carry out investigations and obtain expert evidence so that they could attribute liability for the defects between the parties potentially liable: the defendants, the architect and the contractors.
He refers to paragraphs 8 to 14 of Mr Preston’s First Statement and says that at the time of the issue of the claim form the claimants were aware that there were defects giving rise to water ingress and believed that design deficiencies either caused or contributed to those defects. He says that, although the claimants had obtained a preliminary report from their expert, further excavation works were required to investigate the cause of the defects and arrangements had to be made for these to be carried out and for the expert to produce a report following those investigations.
Mr Hanna also relied on the requests for information which had been made to the defendants and which led to the copy of the defendants’ sub-consultancy agreement being provided on 30 October 2008 and, more recently, on 30 April 2009 to the provision of drawings. He said that the documents requested were necessary not only for preparation of the claim but also for the expert to be able to examine the drawings for the purpose of advising on liability. He referred to paragraphs 16 and 17 of Mr Preston’s second statement where he deals further with the background to the application under CPR 7.6(2) and also provides an update on the progress of the expert.
Mr Hanna submitted that this was not a case where the claimants were seeking time merely to provide a more particularised claim but a claim which provided a particularised claim which represented a viable case. This, he submitted, was a case where the claimants had to decide which of the three potential defendants to proceed against and, in particular, whether they could maintain a case against the defendants. To do so he said that the claimants would need expert evidence which would only be provided when the investigations were complete. This, he submitted, was a case which closely resembled the facts in Steele v Mooney.
Adopting the approach in that case, he submitted that the claimants’ solicitors had behaved sensibly and responsibly in not serving proceedings when they did not know whether the claimants had a claim which had real prospects of success against any, and if so which, of the three defendants; that the claimants could not responsibly proceed against any of the defendants without the support of an expert and the reason why they needed the extension of time was that they were awaiting the investigations and the expert's report and were awaiting information from the defendants in response to proper requests. He submitted that this situation is quite different from those where the claimant seeks an extension of time for service of the claim form because he or she wants further time to prepare a schedule of loss. In the present case, he said that the outstanding information went to the very heart of the claimants’ case and without the expert's report, the claimants did not know whether they had a viable case.
Decision
On the facts set out above and having taken account of the guidance on the operation of CPR 7.6(2), I have come to the conclusion that this case does fall within the area where the court can properly exercise its discretion to extend time for service of the claim form. I come to this conclusion for the following reasons:
This is a case where, although the water ingress defect first appeared in 2002, remedial work was carried out but there was further flooding in April 2008. To investigate the cause of the flooding and the responsibility for it, the claimants’ solicitors needed to obtain expert evidence.
To provide the necessary expert evidence, the expert required investigations in the form of excavation to view the construction of the building and also required plans of the building so that the relevant design and construction could be investigated.
The claimants’ solicitors properly sought the information from the defendants and obtained some information in October 2008, with drawings only being obtained by the defendants from archives and sent to the claimants’ solicitors on 30 April 2009.
The claimants’ solicitors issued the claim form on 22 December 2008 and by April 2009 the investigations had not been completed so that the expert could produce a considered report. This, it seems, was only obtained in late May 2009, the investigations having been carried out in April/May 2009.
By the end of April, the claimants’ solicitors were therefore not in a position where they could properly make allegations of professional negligence against the defendants or the architects or could properly make allegations against the contractors.
I consider that, in the words of Steele v Mooney, the claimants’ solicitors behaved sensibly and responsibly in not wishing to serve the claim form until they were in a position where they knew whether they had a viable particularised claim against a particular party.
Whilst I accept that there is an element of change of wording and emphasis between Mr Preston’s first and second statements, I do not consider that the important underlying facts of the position of the claimants in April 2009 have been changed. This is not a case where the claimants sought further time merely to provide some particulars of quantum or some expert evidence of secondary importance. Rather they needed to provide a viable particularised claim. The reference to the reason being a need to particularise the claim has, in my judgment, to be read in this way where they needed expert evidence and the expert could not properly form conclusions without investigations and seeing documents.
The claimants properly informed the defendants in October 2008 that they were investigating the defects. As raised in argument, under paragraph 6 of the Pre-Action Protocol for Construction and Engineering Disputes, the claimants should have applied for directions on the issue of the claim form. Whilst this would have been a proper and sensible way to proceed, I do not consider that breach of this provision of the Pre-Action Protocol should determine the matter, particularly where the general position is that such breaches are relevant only to matters of costs and, indeed, the contrary was not pressed in argument.
This is a case where some limitation periods for primary causes of action are very likely to have passed between December 2008 and now, so as to give the defendants accrued limitation defences. However, experience of this type of case indicates that there are often arguments as to secondary causes of action which are not statute barred or as to later knowledge which affects the operation of limitation periods. Whilst this is a matter of considerable importance in balancing the factors, I do not consider that the position on limitation is of such strength to overcome the other factors that weigh in the claimants’ favour.
Accordingly, for those reasons I dismiss the defendants’ application to set aside the order made on 20 April 2009 extending time for service of the claim form until 22 July 2009.