Procedural history
The respondent individual sought to appeal an enforcement notice, and a linked refusal to grant planning permission. This was dismissed by an inspector, who was appointed by the appellant secretary of state.
The respondent brought two challenges to the decision of the inspector. First, an appeal against the enforcement notice (“the Appeal”). Second, a claim for a planning statutory review (“the Claim”).
The respondent’s solicitors filed an appellant’s notice and a claim form in an email marked “high importance”. This email did not mention the time limit for service of the Appeal, or the different time limit for the service of the Claim.
The deadline in respect of the Appeal expired without further action.
The respondent’s solicitors asked the court office for safe receipt ‘of the claim’ in a second email marked “high importance”. This second email did not mention that the Claim needed to be issued immediately if it was to be served within the time limit.
After the time limit to serve the Claim expired, the respondent’s solicitors telephone the court office. They were told not to worry, and that it would be “done after lunch”.
A week later, the respondent’s solicitors sent a third email, confirming that ‘there is some urgency’. The respondent’s solicitors called the court office on six further occasions. This was followed up by the respondent’s solicitors sending further emails to the court office.
The Appeal was issued, and later served. It appears that the Claim was sealed on the same day that the Appeal was issued, but the Claim was not issued.
The court office was confused. This was apparent by the erroneous content of an email that it sent to the respondent’s solicitors. The respondent’s solicitors did not challenge this email.
The respondent’s solicitors then served the unsealed Claim on the appellant. It was accepted that this was not good service.
The court office informed the respondent’s solicitors that the Appeal and the Claim could be dealt with at a hearing. The respondent’s solicitors confirmed that they had not received the sealed Claim, so that they were not able to serve it, and that ‘this is of course causing issues regarding our compliance with the time limits of service.’
The Claim was issued, and then promptly served on the parties, albeit after the time limit for service. The respondent applied to extend time for service. The appellant sought a declaration that the court had no jurisdiction to deal with the Claim because the time for service had expired.
The respondent confirmed that the Appeal was withdrawn before the hearing took place.
First instance
It was held that the failure to serve the Claim within the time limit was due to the delay caused by the court office. This failure was therefore outside the control of the respondent, and his solicitors, so time was extended to serve the Claim.
The appellant’s application for a declaration that the court had no jurisdiction to hear the claim was dismissed.
Appeal
There were two grounds of appeal.
First, failure to serve the Claim in time was not due to matters outside of the control of the respondent. Secondly, the prejudice to the appellant caused by the loss of a limitation defence, and the lack of promptitude by the respondent in applying to extend time, were not considered.
Discussion
Coulson LJ (with whom Sir Keith Lindblom and Birss LJ agreed) gave the leading judgment.
In six previous authorities, documents were filed with the court, either very close to, or at, the expiry of the relevant deadline. In four of those authorities, the claim forms were sealed and issued promptly. In all of the authorities, even where the delays in service and seeking an extension could be measured in days, an extension was refused.
There were two steps to consider.
First, “a claimant has to show … that it has taken all reasonable steps to serve the claim form within the relevant period. Where, as here, that period started to run before the claim form had been issued, the court must consider all the steps taken up to the expiry of that period. Events after the expiry of the period are strictly irrelevant to the issue of whether a claimant took all reasonable steps to serve within the period … However later events may shed light on what happened or did not happen during the [relevant] period, and could be relevant to the overall exercise of the court’s discretion.”
Secondly, the claimant must “show that an application for an extension of time made after the expiry of the relevant period has been made promptly. For a case like this, where the expiry of the period in which to serve the claim form is automatic and unconnected with the issue of any documents by the court, the period under consideration starts with the date that the [relevant] period expires, and runs to the making of the application for an extension of time.”
In the instant appeal, unlike the other authorities, the respondent filed the Claim in good time. Thereafter: “I would expect a competent and properly staffed court office to seal and issue the claim form within two working days.”
There was no substantive reason for the court office’s failure to seal and issue the Claim. “I do not accept that anything had to be checked with a lawyer before the simple task of issuing the claim form was completed.” Nevertheless: “A claimant can never safely sit back and do no more, no matter how early the documents are filed.”
“Amongst other things, taking all reasonable steps seems to me to require: (a) Alerting the court at the outset to when the documents must be issued and why, explaining the expiry of any relevant deadline … ; (b) Chasing by email and telephone if there had been no sign of the documents after two or three working days; (c) As any deadline loomed, reiterating clearly, by personal attendance (if possible) at the court office, telephone or email, when precisely the relevant time period for service expired and the consequences of failure to issue in time.”
It was held that the respondent’s solicitors did not do any of these steps, and that “not only did the respondent’s solicitors fail to flag up the respective deadlines, but they exacerbated the problem by not making clear which documents related to [the Appeal and to the Claim].”
Although events after expiry of the deadline are not relevant to the test of whether ‘all reasonable steps’ have been taken, “the respondent’s solicitors not only allowed the … deadline to expire without further contacting the court office, but they waited a full week after the expiry until contacting the court again. … That can only underline the failure to take all reasonable steps to ensure service within the [relevant] period.”
“It is a sad but unavoidable fact of life that court offices do not always act promptly or get things right on their own. They are staffed by civil servants, not judges, and there are rarely lawyers involved. The staff will not necessarily know what time limits apply to which claims. They will need help from the claimant’s solicitors to know which documents are a priority and why. On occasion, they will need to be energetically chased … They can only be chased by a claimant or their representatives: the defendant is probably unaware of the claim. If a claimant does not set out clearly to the court office at the outset what the time limits are, and then compounds that error by failing to react to the inactivity of the court office by energetically chasing the issue of the claim form, they are almost certainly not taking all reasonable steps to serve the claim form in the [relevant] period.”
The respondent failed to take all reasonable steps to serve the Claim within the deadline, or apply for an extension of time promptly.
The judge failed to address either of these points head-on. She therefore failed to consider all relevant factors. The court had no jurisdiction to consider the Claim.
Disposal
The appeal was allowed.
The failure to serve the Claim in time was not due to matters outside of the control of the respondent. The prejudice to the appellant caused by the loss of a limitation defence, and the lack of promptitude by the respondent in applying to extend time, were not considered.
Sir Keith Lindblom added that “a failure on the part of claimants in such cases, and their legal representatives, to take proactive and timely steps to effect service can be fatal for the court’s jurisdiction to consider the challenge. And in this case it was.”
Written by Dominic Bright.
Commercial. Construction. Property.