Halton borough council v Secretary of State for Levelling up, Housing and Communities [2023] EWHC 293 (Admin) – Another case on the pitfalls of failing to serve a claim form on time.
Halton concerned a rather unusual attempt to avoid the problems arising from failing to serve the claim form in time in a statutory review of a costs order made in planning proceedings.
The facts and some background
To challenge a costs order made by the Secretary of State (“SoS”) an application to the High Court must be made pursuant to s.288 within 6 weeks of the decision. CPR PD 54D 4.11 provides that the claim form must be served within the relevant statutory limitation period. CPR PD 54D 4.2 requires the part 8 process (as amended by Part 54) to be used.
The costs order was made on the 27 July 2022 and the statutory limitation period expired on the 8 September 2022. On the 30 August 2022 the Claimant sent a pre-action protocol letter. Then on the 6 September 2022 the Claimant issued the claim form and received a sealed copy from the Court that day. It now had one and a half days in which to serve it.
The initial email containing the sealed claim form was not received by the Claimant. The solicitor did not receive the claim form until the 7 September 20233. The Claimant’s solicitor served the claim form by email on the 9 September under the misapprehension that she had 7 days from issue in which to serve the claim form – which applies for judicial review claims. The claim form was also served by post on one of the interested parties as the Claimant had not received consent to service by email.
An application was made on the 12 September 2022 (the next working day after the 9 September) for an extension of time.
The application for extra time
It was common ground that an application for extension of time was to be determined by reference to CPR r.3.1(2)(a). The dispute centred on whether CPR r.7.6 or the Denton principles applied by analogy.
CPR r.7.6(3)(b) requires as a condition of granting extra time that the Claimant has taken all reasonable steps to serve the claim form in time. The Claimant accepted that if r.7.6 applied by analogy its application for extra time must fail. Instead they asserted that the Denton principles applied.
The Court held that a decision from the Court of Appeal in Good Law Project Ltd v Secretary of State for Health and Social Care [2022] EWCA Civ 355 was effectively binding and that CPR r.7.6(3)(b) applied by analogy.
Conclusion
In ordinary circumstances this would have brought and end to the claim. However the Claimant made a rather ingenious application – to amend the claim to be a claim for judicial review. If allowed, the extra 7 days with which to serve the claim form would apply and the Claimant could bring itself within the period for service.
Happily (at least for the Claimant) the Court did allow that application. However, this case joints the list of cases setting out the ever growing mountain of very stark warnings provided by the court concerning leaving service to the last minute:
- Issue the claim form in good time before the limitation period expires – at least a week and ideally at least a few months before;
- If you have to serve the claim form you had better make sure you understand the rules that apply to that type of claim;
- An application for an extension of time for service will not be allowed unless you can satisfy the court that you took all reasonable steps to serve the claim form in time.
