Commencing Proceedings and Limitation

Article

08 November, 2016

The recent decision in Smith v Denbighshire CC serves as a timely reminder of the strict approach of the Court to the rules surrounding service of proceedings and limitation.

The Facts

In this matter, the claimant allegedly suffered personal injury in 2012 whilst undertaking voluntary work as a wardrobe assistant at a theatre. The defendant admitted breach of duty subject to causation in October 2014.

A claim form was issued in August 2015 at the end of the 3 year limitation period with the particulars of claim marked as to follow. The claimant had 4 months until 6th December 2015 to effect service of the claim form but failed to comply. An application was issued by the claimant's solicitor on 1st December 2015 requesting an extension of time for service of proceedings until 6 March 2016. The application was made just prior to the expiry of the four month period but it was never listed or chased up.

Purported service was attempted by the claimant's solicitor by way of a letter dated 21 April 2016. Subsequently, the claimant's solicitor made a retrospective application to further extend the time for service of the proceedings.

The defendant submitted that the claimant's solicitors had not taken all reasonable steps to serve in time nor had the application to retrospectively validate service been made promptly. The defendant argued that the service of proceedings was defective. Accordingly, the defendant contended that the Court did not have jurisdiction to try the claim.

At the hearing, the Judge agreed with the defendant, the Judge commented that the time limits for service are strict and must be adhered to. The claim was struck out and the defendant awarded its costs.

Forbes comment

It is evident from this case that judges are not prepared to exercise leniency when claimants flout the rules surrounding service of proceedings and limitation. Whilst the judge considered the overriding objective and the prejudice that would be suffered by the injured claimant, he was also mindful of the defendant's position. The limitation period of 3 years is generous, and the relevant authorities emphasise the importance of complying with the relevant timescales.

For more information please contact Sharon Dysart on 0161 918 0016.

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