The recent High Court decision in Boxwood Leisure Ltd v Gleeson Construction Services Ltd & Anor  EWHC 947 (TCC) has generated significant discussion amongst members of the legal community, and acts as a reminder to litigators that bundle preparation and compliance with deadlines are both of paramount importance.
Mrs Justice O’Farrell DBE refused to grant relief from sanctions to the Claimant, whose solicitors had served their Claim Form 4 days late. The Claimant had already obtained a time extension as to the period to serve the Claim Form of more than 6 months from the Court, that previous application also having been opposed by the Defendant, who contended that the subsequent failure to serve the Claim Form in time rendered the proceedings a nullity.
The proceedings having been commenced in March 2020, as the COVID-19 outbreak was in its infancy in the UK, the Court made an Order on 7 April 2020, which extended the deadline for service of the Claim Form until 10 September 2020. 2 days before the deadline, a trainee solicitor at the firm of the Claimant’s solicitors sent the Defendant’s solicitors an email, which enclosed the Particulars of Claim, Response Pack and Initial Disclosure List, but – crucially – did not include the Claim Form.
4 days after the deadline, having realised the omission, the Defendant was then sent the Claim Form by email. The Defendant pointed out that there had been no further application to extend time for compliance under CPR r.7.6(3).
O’Farrell J surveyed and cited a number of authorities and precedents, including Barton v Wright Hassall LLP  1 WLR 1119, which was amongst a number of cases considered by the Judge which involved late and/or non-effective service of a claim form. She summarised the relevant principles at , surmising that r.7.6(3) comprised an absolute limit on the court’s discretion to extend time for service of a claim form. Neither r.3.9 nor r.3.10 could be invoked to circumvent the specific conditions set out in r.7.6(3) which needed to obtain in order for the court to have the power to extend time for service. The Claimant had made no application under that provision, but in any event, the conditions were not met.
The Judge considered that even if it had been open to the Claimant to seek relief under r.3.10, it was not appropriate to grant this, because the Claim Form had not been filed in time at all, and the Defendant would be deprived from raising limitation as a defence. Neither would the Claimant have been able to avail itself of the relief in r.3.9, even if it were applicable. This was because service had a matter of days rather than minutes late, making the breach serious and significant. There was a reason for the delay, but it was incumbent on the Claimant’s solicitors to ensure that the extended dates which had been ordered by the court were met, given that limitation was known to be a live issue in the proceedings. In all the circumstances, it was not just to deprive the Defendant of any accrued limitation defence to the proceedings by further extending time for service of the Claim Form.
The case has not gone unnoticed amongst legal commentators. It demonstrates the Court’s finite leniency and the fact that the Court’s case management powers are not an invariable cure-all for errors such as defective or late service.