Help! Claim form not served in time (Q & A)

Help! Claim form not served in time (Q & A)

Q: The claim form has not been served in time. What can I do?

A: It is possible to make an application to the court for permission to extend the time for service of the claim form.

However, when such an application is made after the time for service has expired, the court will apply very stringent hurdles that you will need to overcome to obtain an order for extension of time.

You will need to:

  1. make the application promptly—do not delay making the application, as this could impact on whether the court will make such an order
  2. provide supporting evidence to show that either the court failed to serve the claim form in time or, if you undertook to serve the claim form, that on behalf of the claimant you took all reasonable steps to comply with the time for service set out in CPR 7.5, but were unable to do so
  3. set out the steps you undertook and also why they did not result in service of the claim form in time

Different considerations apply depending on whether you are seeking to serve in the jurisdiction or out of the jurisdiction.

Note: if limitation issues arise the court is much less likely to grant an order for an extension of time where to do so would deprive the defendant of a limitation defence*.

You may also wish to consider whether it is appropriate to make an application for alternative service if the reason for the failure is due to difficulties with service.

Note, however, that it is rare for alternative service to be ordered and will only be ordered if there are genuine and prolonged difficulties in trying to effect service or where an address for service cannot be ascertained, e.g. alternative service has been granted to serve via facebook.

For detailed assistance on this subject, Lexis®PSL Dispute Resolution customers can see Practice Note: Service of the claim form—extensions of time — Application after expiry of usual period for service.

*Lexis®PSL Dispute Resolution customers can see Practice Note: Service of the claim form—extensions of time — Limitation—depriving defendant(s) of a limitation defence.

Part of the Lexis®PSL Dispute Resolution Q & A series. Click here for a free one week trial of Lexis®PSL

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About the author:

Janna is a dispute resolution lawyer. She deals primarily with cross border issues and is active in the work being undertaken in relation to the implications of Brexit for Dispute Resolution lawyers. Janna also heads up a LexisNexis costs team bringing together expertise from across the company to deal with the costs issues facing the profession.