MITCHELL STRIKES AGAIN – LATE SERVICE OF PARTICULARS

pi_catherine_duffy Catherine Duffy

Considering Associated Electrical Industries Ltd v Alstom UK [2014]EWHC 430

EXTENSION OF TIME REFUSED, CLAIM STRUCK OUT

Associated Electrical Industries Ltd v Alstom UK [2014]EWHC 430

Here the Claimant was 20 days late in serving the particulars of claim, the action was struck out.

Although, between the parties, it was disproportionate to strike out a claim for late service of the particulars, the current emphasis given by decisions of the Court of Appeal to enforcement of the CPR to encourage procedural discipline, led to the conclusion that the claim should be struck out and the extension of time refused.

The Facts

This was a claim for a contribution following the payment of damages in a mesothelioma claim. The claim form was served in September 2013. The Particulars of Claim were due to be served by 29th October 2013, they were not served until 18th November 2013. The claimant made an application to extend the time for service, the defendant made an application to strike out the claim.

Judgement of Smith J

  1. 1.      The period of non-compliance, 20 days, was not trivial

The claimant could have asked the defendant for an extension long enough before the deadline to enable it to apply to the court within time. However by the time the claimant asked the defendant for an extension, any application for an extension of time would have had to be made retrospectively, this displayed indifference to compliance with the CPR. The period of non-compliance was not trivial.

  1. 2.      There was no good reason for non-compliance

Investigations of the claim had not been straight-forward, however, the claimant appeared to have carried out investigations before issuing proceedings. Importantly the judge noted that if difficulties in investigating the claim had justified the particulars being late, a timely request for an extension should have been sought from the defendant.

  1. 3.      Was the possibility of issuing fresh proceedings relevant?

It was not for the instant court to determine whether a second action should be struck out as an abuse. However, if the defendant’ s application were granted, there was the real prospect that it would result in further litigation and the substantive dispute between the parties being eventually determined at more cost and after more delay (Birkett v James [1978] A.C. 297 considered).

Wyche v Careforce Group PLC [2013]EWHC 3282, had been criticised in Mitchell for taking account of the possibility of satellite litigation when considering whether to grant relief from sanctions. However Wyche was about satellite litigation and was not concerned with subsequent litigation that might be brought.

Courts were discouraged from giving too much weight to the prospect of unprofitable hearings, but Mitchell did not decide that that had always to be entirely disregarded (paras 38-40).

  1. The balance of justice, having regard to the CPR (see para 41 onwards).

If the judge’s decision depended only on what would be just and fair between the claimant and the defendant, the court would not strike out the claim and would extend time, given the non-compliance had been remedied after 20 days and had not disadvantaged the defendant. However the court had to strike a balance between the interest of parties and the interests of others who might be affected. Nothing in Mitchell suggested that the court should disregard justice between the parties altogether.

Where relief from sanctions was sought CPR r 3.9 required the court to consider all the circumstances. Mitchell said that considerations other than those specifically mentioned in r3.9 were to be given less weight. That did not mean that the court had to give more weight to those specific considerations than to other aspects of the overriding objective and other relevant circumstances. Mitchell’s guidance was directed to applications under r3.9.

This did not help the claimant. The court still had to give effect to the overriding objective. The point at issue was the importance of enforcing the requirements of the CPR. It was considered that once it is understood that the courts will adopt a firm line on enforcement, there would be fewer applications under r3.9.

Although as between the parties it would be disproportionate to strike out the claim, the emphasis given to the enforcement of the CPR to encourage procedural discipline led to the conclusion that the claim should be struck out and the extension of time refused.

The result: application to extend time refused, application to strike out granted.

Smith J felt this was the only appropriate conclusion following the judgement in Mitchell.

Tips

–          This case again shows the problems with applications for relief from sanctions post Mitchell.

–          Applications for extensions of time must be made in advance of the date for compliance.

  CATHERINE DUFFY

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One comment

  1. […] My colleague Catherine Duffy, writing in Zenith PI blog, considers the AEI case in Mitchell Strikes Again – Late Service of Particulars […]

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