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Editorial: Applications for Service of Claim Form - Aidan Ellis, Temple Garden Chambers

31/07/18. CPR 7.5(1) requires a claimant to serve his / her claim on the defendant within four calendar months of the date of issue of the claim form. Where claims are approaching limitation, this effectively gives the claimant a bonus of four months in which to investigate and perfect the claim. In personal injury claims, for example, the four month period can be used to obtain the necessary medical or other expert evidence.

That can be frustrating for the defendant. First, it means that the third anniversary of an accident does not bring any certainty to the defendant, who must instead wait a further four months to see whether any claims have been issued. Second, it alleviates any pressure on the Claimant because the evidence can be considerably improved in that four month window.

A potential remedy is offered by CPR 7.7 which provides that where a claim has been issued but not yet served, the defendant may serve a notice on the claimant requiring service within 14 days and, if service is not forthcoming, may apply to the court which may dismiss the claim or make any order it thinks just. There is surprisingly little jurisprudence on the application of this provision. Perhaps that is because it is unlikely that the many claims would be dismissed as a result of this provision; where the claimant is simply taking advantage of the additional four month period permitted by the Rules it is unlikely to be just to dismiss the claim. Applications under this rule are likely to be stronger where there is an extensive history of correspondence, where no defined case has been formulated pre-action or where there is a significant delay on the claimant’s part which is likely to be hard to justify. In appropriate cases, it may be beneficial for defendants to make greater use of this provision in order to discover whether proceedings have been issued, to flush out the claimant’s pleaded case and expert evidence at an earlier stage or simply to try to deny the claimant the uninterrupted indulgence of an extra four months to formulate the claim.

Aidan Ellis
Temple Garden Chambers

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