Full case report

Drury v Carnegie (CA)

Reference [2007] EWCA Civ 497; [2007] EMLR 637; The Times, 11 June 2007
Court Court of Appeal

Judge Dyson and Smith LJJ

Date of Judgment 23 May 2007


Summary

Libel – Claim form – Service – r.7.6(3)(b) Civil Procedure Rules – Extensions of time


Facts

Carnegie (C) appealed against a decision that the respondent Drury (D) was entitled to a substantial extension of time for service of the claim form and particulars of claim in a libel action. C was the second defendant in a libel claim brought by D against the BBC following a television programme broadcast about D’s business. D sent a letter of claim, addressed to C, to the BBC as C’s last employers and issued a claim form, naming the BBC as the first defendant and C as the second defendant. On the last day for service of the claim form, D’s solicitors informed the BBC that it intended to serve proceedings on C care of the BBC and requested C’s address as an alternative method of service. Minutes before the expiry of the four-month service limitation period, C’s solicitors faxed the claim form and particulars to the BBC. The service was effective only on behalf of the BBC. Some ten weeks later D was granted an extension of time for service on C under CPR 7.6(3)(b) and (c). C appealed.


Issue

(1) Whether the judge’s approach to CPR 7.6(3)(b), the question of the reasonableness of D’s efforts to serve the claim form, was correct; and

(2) whether the judge had been entitled to hold that D had acted promptly in making his application for an extension of time.


Held

Allowing the appeal:

(1) The judge’s decision on CPR 7.6(3)(b) could not stand. The error of fact he had made was not insignificant as, had he realised that the attempted service had not entailed sending any documents which named C to his place of work, he might well have reached a different conclusion. The judge had also erred in taking into account the steps taken to effect service after the four-month period had elapsed. 7.6(3)(b) required the judge to consider whether all reasonable steps had been taken to serve C during the four-month period. He had done nothing until the very last day and explanations for this delay were unsustainable. It could not be said that the steps taken were all that could reasonably have been expected of D. He therefore failed to satisfy the threshold condition in 7.6(3)(b).

(2) The judge had given no adequate reason for holding that D had acted promptly in making his application and the only possible conclusion on the evidence was that he had not.


Comment

Lady Justice Smith stressed the importance of taking time limits seriously, stating (at [40]): “this court has warned litigants of the dangers of leaving until the last minute the taking of a procedural step governed by a time limit…If repetition of this warning is necessary, let this case provide it. A litigant is entitled to make use of every day allowed by the rules for the service of a claim form. But it is well known that hitches can be encountered when trying to effect service. A litigant who leaves his efforts at service to the last moment and then fails due to an unexpected problem is very unlikely to persuade the court that he has taken all reasonable steps to serve the claim in time.”


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Instructing Solicitors

BBC for the Appellant; Respondent in person