In the case of Bali v 1-2 Couriers Limited [2025] EWCA Civ 1413, the Court of Appeal provided a salutary lesson to the parties regarding the perils of leaving the issue of limitation until the last moment and then failing to take proactive steps to ensure the claim form was served within four months of sealing by the court.
The case illustrates the strict approach taken by courts, even where there is arguably unfairness to a claimant.
The court confirmed that the date of issue from which the four-month period for service runs is the date the court seals the claim form. In this case a mistake by the court led to the issued claim form not being sent to the claimant until this period had expired. However, the court found that the claimant had not effected proper service and was in breach of the four-month period.
Further, the court refused to exercise its discretion to extend the time for service retrospectively. It recognised that, in exercising discretion, account could be taken of the fact that the claimant was not in possession of the claim form within the service period because of a mistake by the court but that other conduct of the claimant, including waiting until the last moment to issue proceedings and then failing to proactively chase the court, were factors that mitigated in favour of not exercising discretion. In applications to retrospectively extend time for service of a claim form it will be rare for discretion to be exercised in favour of the claimant.
By the time the claimant attempted to serve the claim form it was a year after the three-year limitation period. It would be difficult for the claimant to issue a fresh set of proceedings and request the court to exercise discretion in his favour under the Limitation Act 1980.
The claimant suffered personal injury in a road traffic collision on 2 December 2019. The primary limitation period therefore expired on 2 December 2022. The claimant instructed solicitors late in the day on 22 November 2022, and on 29/30 November 2022 they sent a claim form to the court along with a ‘help with fees’ application. The form was received by the court on 2 December 2022, which was the last day of the limitation period. Therefore, by virtue of Practice Direction 7A, the claim was brought (just) in time for limitation purposes, because the date which counts for those purposes is the date it is received in the court office.
There was then a long period of delay. This included communication between the court and the claimant regarding whether the court issue fee was paid and what the claimant’s contribution was. Eventually, on 12 December 2023, over a year after the claim form had been sent to the court, there was a telephone conversation between the court and solicitor which resulted in the issue fee being processed. An email was sent to the claimant confirming the claim number that had been allotted. The seal on the face of the claim form was dated 13 December 2023. However, the claim form was not posted to the claimant until 2 April 2024. In the intervening period there was further communication between the court and claimant’s solicitor regarding the issue fee. There was some delay by the claimant in responding to a query from the court. The solicitor did not receive the sealed claim form until 15 April 2024, two days later than the four-month period for service which, pursuant to CPR r.7.5, had expired on 13 April 2024.
Instead of immediately seeking a retrospective extension of time for service on the following day, 16 April 2024, the solicitor issued an application for relief from sanctions. It was not until 22 November 2024 that they sought to amend the application to extend time for service of the claim form under CPR 7.6.
The claimant argued:
The court dismissed the first argument confirming that the date of issue was the date the claim form was sealed by the court, regardless of when the claim form was sent to, or received by, the claimant.
On the second issue the court recognised that the claimant was entitled to have the mistake of the court weighed in the balance. However it said that a wider view had to be taken regarding the conduct of the claimant in terms of delay in waiting until the last moment to issue proceedings, and then failing to take proactive steps in the period of over a year between when they sent the claim to the court and when it was eventually received by them for service. The court found that “it may expect a greater level of proactivity on the part of the legal representatives of a party facing a deadline where the time for service has already begun to run before the party lodges the unsealed claim form with the court”.
The leading judgment said:
“A reasonable person in that situation would seek to find out whether the claim form had been issued and, if it had, whether it had been sent out to him, and if so, when. In cases where the limitation period has expired and so the situation cannot be cured by bringing fresh proceedings, it is all the more imperative to seek answers to those questions and to chase the court office if they are not forthcoming.
“Although a person cannot serve a claim form until it is in his possession, the attempts he has made to obtain it (in order to be able to serve it) are plainly relevant to the question whether he has taken all reasonable steps to serve it in time.”
Lord Justice Coulson remarked that the claimant was unable to show that this was anything other than a case of unjustifiable delay. Limitation expired on 2 December 2022 and all of the claimant’s solicitor’s “intermittent dealings” with the court over the following 18 months took place after that date and therefore after a potential limitation defence had accrued to the defendant. The judge said that “alarm bells should have been ringing very loudly” and that if discretion had been exercised in favour of the claimant, it would have meant he could have effectively extended the three-year period by a further 18 months without the defendant’s knowledge and without any adverse consequences.
In circumstances such as this it would be difficult for the claimant to pursue a claim which would otherwise have merit.
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