Galliford Try Construction Limited v Arcadis Consulting (UK) Limited & Ors

Mr Roger ter Haar KC : Introduction

1. The two applications before the Court are the Claimant’s application as follows: (1) The first application seeks the Court’s approval of a “draft consent order” extending a stay of these proceedings originally ordered by Jefford J. to 31 March 2025; (2) The second application seeks a further stay and/or extension of the period for service of the Claim Form and/or Particulars of Claim and/or relief from sanctions. The Facts

2. In summary, the background to these proceedings is as follows: (1) These proceedings concern a project to design and construct a new multi-million pound city centre library, history and customer centre for the public and students of the University of Worcester (“the Project”). The combined facility, formally known as the Worcester Library and History Centre, and colloquially referred to as “the Hive” to reflect its purpose and aesthetics, was the result of a unique collaboration between Worcester County Council and the University of Worcester, described in the following terms on the Hive website : https://www.thehiveworcester.org/creating-the-hive.html Worcestershire County Council and the University of Worcester worked together to create a new multi-million pound city centre library, history and customer centre for students and the public. The two organisations, along with the support of Worcester City Council and Advantage West Midlands, realised the opportunity of creating a combined facility for the whole community to use, and the project has developed into one of the most exciting new libraries in Europe. (2) The Employer for the Project was WLHC ProjectCo Limited (“ProjectCo”). (3) By a contract with ProjectCo dated 29 January 2010 (“the Building Contract”), the Claimant agreed to undertake the financing, design and construction, completion and commissioning and testing of the Hive. (4) The First Defendant (then known as Hyder Consulting UK Limited) was originally appointed by ProjectCo to carry out the civil, structural, geotechnical and archaeological engineering services for the Project. The First Defendant’s appointment was novated to the Claimant by an agreement dated 29 January 2010. The First Defendant is represented in these proceedings by DAC Beachcroft LLP (“DACB”). (5) The Second Defendant was engaged by the Claimant as the mechanical and electrical sub-contractor for the Project. The Second Defendant is represented in these proceedings by Hawkswell Kilvington Limited (“Hawkswell Kilvington”). (6) The Third Defendant was originally appointed by ProjectCo to provide architectural design services for the Project. The Third Defendant’s appointment was novated to the Claimant by an agreement dated 29 January 2010. The Third Defendant is represented in these proceedings by DWF Law LLP (“DWF”). (7) The Fourth Defendant was engaged by the Claimant as the sub-contractor for the post-tensioned slab and concrete frame for the Project. The Fourth Defendant is represented in these proceedings by Knights Professional Services Limited (“Knights”). (8) Practical Completion was certified by Gleeds Building Surveying Limited as having taken place on 27 January 2012.

3. Protective proceedings were issued against the Defendants on 26 January 2024.

4. By order of Mrs Justice Jefford dated 10 June 2024, upon an application made by the Claimant on 22 May 2024, the proceedings were stayed until 22 February 2025 to enable the parties to comply with the Pre-Action Protocol for Construction and Engineering Disputes (“the Protocol”). The terms of her order were as follows:

1. These court proceedings are stayed until 22 February The Order in fact says “until February May 2025”, but the insertion of the word “May” is clearly a typographical error. … 2025 pursuant to CPR 3.1(2)(f) to enable the parties to comply with the Pre-Action Protocol for Construction and Engineering Disputes (the “Protocol”).

2. Within 7 days of the date of this Order, the Claimant shall make proposals to the Defendants as to the timetable for compliance with the Pre-Action Protocol and the Parties shall endeavour to agree the timetable.

5. In the Reasons section of the Order the learned judge said:

1. It is not satisfactory that the Claimant has applied for a 12 month stay for compliance with the Pre-Action Protocol without seeking any directions for compliance and with little or no explanation as to why 12 months is required.

2. The fact that the application for a stay and directions was not made at the same time as the proceedings were issued (in accordance with paragraph 12.1 of the Pre-Action Protocol) does not preclude the claimant making such an application or deprive the court of jurisdiction to grant a stay.

3. The stay is consented to or not objected to by all Defendants except the First Defendant.

4. The appropriate way was to take account of the fact that the application was not made until nearly 4 months after proceedings were issued and then with no further proposals for compliance with the Pre-Action Protocol is (i) to grant a shorter stay and (ii) to give directions for the Claimant to make proposals for the timetable for compliance with the Pre-Action Protocol.

6. The First Defendant suggested that the claim was statute-barred because the Order was made after the expiry of the four-month period within which the Claimant was required to serve its Claim Form and Particulars of Claim. The nub of the point made was that time for service of the Claim Form and Particulars of Claim expired on 26 May 2024, and the Order was made on 10 June 2024, and therefore after that expiry date. However, the Claimant’s application upon which the Order was made was made on 22 May 2024, before the expiry date.

7. The Claimant sought clarification of the Order.

8. On 18 June 2024 the learned judge’s clerk forwarded her reply: The intention of my Order was to grant a 9 month stay from the date of the application (22 May 2024). The parties having agreed that the application could be dealt with on paper, I gave short reasons for the order. I appreciate that I referred to a “shorter” stay than that applied for rather than expressly to a 9 month stay but, as the claimant points out, the date to which the stay was granted was 9 months from the date of the application. The stay, therefore, “froze” time for service at that point and until the expiry of the stay. If the First Defendant considers that that needs to form part of the Order, they should say so and I will amend the order under the slip rule. I note that the First Defendant refers to the decision in Grant v Dawn Meats (UK) [2018] EWCA Civ 2212 . In that case, there does not appear to have been any argument that the stay took effect from any date other than the date of the relevant Order and the stay was from 3 months from the date of that Order. That is not authority for the proposition that a stay always takes effect from and/or can only take effect from the date of the Order. It was patently not my intention in making the Order that the stay should only take effect from the date of the Order. It was patently not my intention in making this Order that the stay should only take effect from the date of the Order as (i) there would have been no point in making the Order after the time for service of the claim form had expired without also extending time for service of the claim form and (ii) I would have been granting a stay for a random period of 9 months less x no. days. (Emphasis in the original).

9. By a consent order of Mrs Justice O’Farrell dated 31 July 2024, the following timetable for compliance with the Protocol was established: (1) service by the Claimant of the Letters of Claim by 20 September 2024; (2) service by the Defendants of Letters of Response by 1 November 2024; (3) a Without Prejudice meeting to be held by 22 November 2024.

10. Letters of Claim were served by the Claimant as ordered on 20 September 2024.

11. Letters of Response were served by the Defendants: (1) By the First Defendant on 29 October 2024; (2) By the Second Defendant on 1 November 2024; (3) By the Third Defendant on 1 November 2024; and (4) By the Fourth Defendant on 16 October 2024.

12. The effect of the Orders referred to above, once the exchange of correspondence had been completed, was that there was to be a Without Prejudice meeting by 22 November 2024. If that failed to achieve a settlement, the stay would expire on 22 February 2025.

13. Thus there was a 21 day period between completion of correspondence and the Without Prejudice meeting.

14. Perhaps unsurprisingly, with 5 parties involved, it proved difficult to arrange for the meeting to take place within that period.

15. One part of the difficulty was that the Claimant wished its experts to be present at the meeting. In an email dated 8 November 2024, DACB (for the First Defendant) questioned this, pointing out that no expert evidence had been referred to in the Claimant’s Letter of Claim or disclosed.

16. In the event the Parties agreed that the date for the meeting should be extended.

17. By a further consent order of Mrs Justice O’Farrell dated 22 November 2024, the date for holding a Without Prejudice meeting was extended to 31 January 2025.

18. When consenting to the Order, Hawkswell Kilvington for the Second Defendant again raised concerns about the involvement of experts, saying: As to experts, whilst your comments are noted, they do not address the concerns raised by DAC Beachcroft. As pointed out previously, the Claimant made no reference to experts in its Letter of Claim (as required by the Protocol); no expert evidence has been referred to in the Letter of Claim or disclosed; nor have the identities of the Claimant’s experts been provided. In the circumstances therefore, please confirm:

1. the identities/disciplines of the Claimant’s experts;

2. the issues to which those experts will be opining; and

3. whether those experts have produced reports.

19. It rapidly became apparent that holding the meeting by the extended date would be problematical. On 29 November 2024 Clyde & Co wrote to the other Parties as follows: Unfortunately, we are not available on any of the four dates below. As such, it appears that we will not be able to hold the meeting in January. We therefore propose to extend the requirement to 28 February 2025 and seek to find a suitable date in February instead. Rather than submit a further consent order and incur unnecessary costs, please could you confirm agreement to this proposal by reply and we will rely on the parties’ ability to vary the time to do an act under CPR 2.11, informing the court of our agreement accordingly. We should be grateful if you would also revert as soon as possible with dates of availability during February 2025. We will aim to do the same and are seeking confirmation from our client accordingly.

20. On 4 December 2024 Hawkswell Kilvington responded, giving dates up to 28 February 2025.

21. On 10 December 2024 DACB responded, indicating agreement to the meeting taking place in February 2025.

22. On 11 December 2024 DWF responded suggesting availability on 10 and 13 February 2025.

23. On 9 January 2025 Knights responded saying that their client was available on 10 and 13 February 2025.

24. Thus all five parties were agreeable to the date for the meeting being extended beyond 31 January 2025.

25. On 13 January 2025 Clyde & Co confirmed their availability for 10 February 2025.

26. Thus, it appeared to be settled that the meeting would take place on 10 February 2025, within the period of the stay ordered by Jefford J.

27. However, on 4 February 2025, Clyde & Co sent an email to the other parties as follows: In respect of the ongoing water ingress issues, please see attached a further defect notice dated 11 January 2025 received by our client from WLHC ProjectCo Limited (ProjectCo). Our client is currently engaged in discussions upstream with ProjectCo to urgently find a permanent solution to the water ingress issues affecting the basement archive. As detailed previously, our client has engaged a water ingress expert, Dr Rupert Pool, to assess these defects and opine on how to remediate them effectively to ensure a permanent solution. However, he is still working towards finalising his opinion and anticipates that he will be able to complete this by the end of February. As such, Dr Pool’s opinion will not be available prior to 10 February 2025 when the WP meeting is currently scheduled. In light of this, our client proposes that the WP meeting does not go ahead on 10 February 2025 as planned and we therefore seek your clients’ agreement to postpone the WP meeting to the week commencing 3 March 2025, to allow for the expert report and discussions with ProjectCo regarding a solution to be concluded. Whilst we acknowledge the inconvenience of postponing the WP meeting less than a week before it is scheduled, we believe that this is the best solution in the circumstances. The productivity of the WP meeting will be vastly improved if it is held on a date after the expert report has been prepared and we have responded to the outstanding queries from your clients, which remains our client’s intention. We believe that this also addresses the concerns shared by the parties to date. If you are in agreement, we should be grateful if you would please confirm your consent to a proposed extension to the deadline for a WP meeting to 31 March 2025 and to provide your client’s availability to attend the WP meeting in the week commencing 3 March 2025.

28. On 5 February 2025 Hawkswell Kilvington notified the Second Defendant’s agreement to postpone the meeting and to consent to an extension of the deadline for that meeting to 31 March 2025. They indicated that they were looking forward to receiving a draft Consent Order.

29. On 7 February 2025 DACB notified the First Defendant’s agreement to the proposed extension to the deadline for a WP meeting to 31 March 2025.

30. Also on 7 February 2025, DWF notified the Third Defendant’s agreement to the postponement of the meeting, whilst questioning whether the proposed date in week commencing 3 March was too optimistic.

31. On 10 February 2025, Knights notified the Fourth Defendant’s agreement to the postponement of the meeting.

32. Thus there was agreement by email to the postponement of the meeting. An important issue before me was what was implied by that agreement as to any extension of the time for service of the Claim Form and Particulars of Claim and as to any extension of the stay.

33. The stay was due to expire on 22 February 2025 and the time for service of the pleadings on 26 February 2025.

34. On 6 March 2025 the Claimant applied to the Court seeking an extension of the stay to the end of March 2025. The application attached a “draft Consent Order”. The terms of the order sought were as follows: 1 The stay of these court proceedings shall be extended to 31 March 2025 to enable the parties to comply with the Pre-Action Protocol for Construction and Engineering Disputes. 2 Paragraph 1(d) of the Timetable Order, as amended, shall be further varied as follows: (a) The parties shall endeavour to hold a Without Prejudice meeting between them by 31 March 2025. 3 Costs in the case.

35. This is the first application before me.

36. Although the draft order was headed “draft Consent Order”, the terms of the order had not been agreed between the parties, and it is in dispute before me whether I have jurisdiction to make the order, and, if I do, whether I should do so.

37. Notified of the proposed application: (1) DWF, acting on behalf of the Third Defendant, replied to say that they were taking instructions but that it was likely that the order for “costs in the case” would not be agreed. There was no suggestion that the underlying basis for the draft consent order, namely that the parties had agreed to attending a protocol meeting during March 2025, with a concomitant extension of the stay to allow such a meeting to take place, was in any way inaccurate. (2) DACB, acting on behalf of the First Defendant, replied to say that the agreement to extend the date for the protocol meeting did not carry with it an agreement to extend the stay, and as such “time for service of your client’s claim form has now lapsed” . This was the first time that such a suggestion was raised by any of the Defendants. (3) In response to DACB’s email, DWF then replied to reiterate that they were taking instructions and stated that “our observation about costs does not represent the entirety of our Client’s response to this afternoon’s communications from Clyde & Co”. (4) No response was received from either of the Second or Fourth Defendants on that day. The following day Hawkswell Kilvington, on behalf of the Second Defendant, wrote to say that they were also taking instructions and stating that they made “the same observations as DAC Beachcroft concerning (i) the Defendants’ purported agreement to extend the stay” . (5) No further correspondence was received from the Defendants until the following week, when a copy of a letter sent to the Court by DACB, the contents of which were agreed by the other Defendants, was provided to the Claimant on 12 March 2025. That letter stated as follows:

1. We represent the First Defendant, Arcadis Consulting (UK) Limited, in the above proceedings.

2. Without waiving common interest privilege, we confirm that, as per the enclosed email correspondence, the contents of this letter are approved and supported by all of the Defendants. We therefore respectfully request that this correspondence is treated as though it were issued on behalf of all of the Defendants.

3. We refer to the Claimant’s letter to the Court dated 6 March 2025 enclosing an application of the same date (the “Application”), pursuant to which the Claimant seeks an extension to the stay ordered by Mrs Justice Jefford on 10 June 2024 which expired on 22 February 2025.

4. As a preliminary point, we note the Application was issued via email only. Whilst we do not understand any of the Defendants’ representatives have ever confirmed to the Claimant that they are instructed to accept service via email, in the circumstances, the Defendants confirm they are willing to do so on this occasion.

5. Turning to the Application itself, the Court should note that this is in fact an application for an extension of time made for service of the claim form. We wish also to point out that, contrary to what is stated at numbered paragraph 6 of the Claimant’s letter to the Court, the extension sought by the Claimant therein has not been agreed by the Defendants, and it is intended to oppose the Application.

6. The Defendants disagree, as a matter of fact and/or law and/or procedure, that the parties “expressly, impliedly and/or through a course of dealing” agreed to extend the stay of proceedings, which is the basis of the Claimant's application, as contended in paragraph 21 of the supporting witness statement of Christopher Leadbetter.

7. In view of the above, it is apparent that an application hearing will be required. Given the number of parties involved, the Defendants consider a one-day hearing will be appropriate.

38. On 28 March 2025 the Claimant made a further application. This sought orders in the alternative (Options “A” and “B”).

39. The Option A order was an order providing: 1 The stay of these court proceedings is extended to [a date three weeks from the determination of the Claimant’s applications] pursuant to CPR 3.1(2)(g) and/or CPR 26.5(4). 2 Paragraph 1(d) of the Original Order shall be varied as follows: (a) The parties shall endeavour to hold a Without Prejudice meeting between them by the date set out in paragraph 1 of this Order. 3 Costs in the case.

40. The Option B order was an order providing: 1 The stay of these court proceedings is extended to 31 March 2025 pursuant to CPR 3.1(2)(g) and/or CPR 26.5(4). 2 The time for service of the Claim Form and Particulars of Claim on the Defendants is extended to [a date three weeks from the determination of the Claimant’s applications] pursuant to CPR 7.6. 3 Costs in the case.

41. This application is the second application before me. What was agreed between the Parties, and what is the effect of that agreement?

42. In Mr Thompson’s Skeleton Argument for the hearing before me (he being counsel for the Claimant) at paragraph 17 he submits: It is submitted that the only sensible interpretation of the evidence is that the parties were in agreement that the stay should be extended by a period commensurate with the extension of the deadline for the Protocol meeting to be held, i.e. to the end of February, or at least that the Defendants acquiesced in the situation that arose (namely that a meaningful meeting could be held up to the end of March 2025, including after the expiry of the stay, without the Claimant having served the claim form and particulars of claim). A Protocol meeting would not have been meaningful unless the Claimant would have been in a position to progress the claim if no resolution of the dispute had been achieved.

43. All parties have submitted witness statements from their respective solicitors setting out what each subjectively thought was being agreed or not agreed.

44. Whilst I did not ask for submissions on this point, it seems to me that evidence is strictly irrelevant: what is relevant is what the parties agreed as assessed objectively on what was said or done (or not said or done) by each of them.

45. Mr Thompson accepts that there was no express agreement to an extension of the stay imposed by Jefford J. As he stated in his submission as recorded above, he submits that agreement to a stay flowed from the agreement to the extension of time for the Without Prejudice meeting.

46. This has been interpreted by the Defendants as a submission that it was implicit in the agreement to postponement of the Without Prejudice meeting that there would be an extension to the stay.

47. The Defendants refer to the well established principles in respect of implication of a term. These were, in my view, correctly summarised in paragraph 53 of the skeleton argument of Mr Zvesper, counsel for the First Defendant: (1) The purpose is not to add to an agreement, but only to spell out what it means; (2) A matter will not be implied if it is impossible to say that it is the only thing the agreement could mean; (3) The Court will only do so where it is necessary to reflect the true meaning of an agreement; (4) The Court will only do so where the matter said to be implied went without saying at the time the agreement was entered into.

48. On the facts of this case, I would add an extra condition. It is clear on the correspondence that all parties were to be involved in the Without Prejudice meeting and therefore that any postponement of the meeting would have to be agreed by all (or the subject of a court order) and also that the terms of such postponement would have to be agreed.

49. Whilst all parties were agreed on the postponement to the end of March 2025, there was a small difference between them in that the Second Defendant’s agreement appears to have been conditional upon agreement of a Consent Order, whilst the other Defendants’ agreement was unconditional. However, I do not rest my decision on that point as such, but there is importance as to the form such an agreement would take.

50. In my view, it does not follow from the fact of an agreement to the postponement of the meeting alone that a stay was agreed. If there had been no potential limitation problem, then there was no reason why a meeting could not have taken place after the stay had been lifted.

51. It was the expiry of the limitation period if (a) the stay was not continued and (b) the pleadings were not served by 26 February 2025 which lies at the heart of the problem. What the Claimant needs is a retrospective extension of the stay of the proceedings to put itself in the position it would have been in had the stay been extended or renewed prior to 26 February 2025 by when the proceedings otherwise should have been served.

52. I find it impossible to conclude that the Defendants impliedly agreed to a stay being granted retrospectively so as to deprive them of any limitation defences each of them might have as a result of the failure to serve the proceedings timeously.

53. A further important point is that the agreement to postpone the meeting had been reached by 10 February 2025, which was 12 days before the stay was due to expire and 16 days before the date for service of the pleadings would expire. Nothing which the Defendants did or said (or did not do or say) amounted to an implied agreement that the Claimant need not take appropriate steps to protect its position in the days remaining. The simplest thing would have been to serve the pleadings and then seek an order for a further stay for a limited period, or to seek a short extension for the date of service of the pleadings.

54. As to what was agreed, it is relevant that it was agreed between the parties’ lawyers. With that in mind it seems to me that a relevant term was to be implied, namely that insofar as the agreement to postpone the meeting required legal formalities to be respected, the parties would use their best endeavours to comply with such formalities.

55. In respect of the meeting, the deadline for this had been set by the Court. CPR 2.11 permits parties to vary the time specified to do an act. CPR 2.11 provides: Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.

56. I am prepared to accept, without deciding the point, that an exchange of emails may constitute a “written agreement” for the purposes of CPR 2.11. Thus, I am willing to accept that there was a written agreement to the postponement of the meeting.

57. The question is whether there was a “written agreement” to stay the proceedings, assuming, contrary to what I have decided above, that the parties have implicitly agreed to a stay of the proceedings. This involves the question, does the expression “written agreement” to vary a time specified by the Court include an implied agreement.

58. The Second Defendant submits, and I agree, that the answer to this question is given by the decision of the Court of Appeal in Thomas v Home Office in which Neuberger L.J. said at paragraph [28]: [2007] 1 WLR 230 … To my mind, the concept of a “written agreement between the parties”, particularly in the context of the Rules, involves a document or exchange of documents which is intended to constitute the agreement or to confirm or record the agreement…

59. In that case, the Court was considering a case in which the principles of estoppel were invoked to avoid the strict terms of CPR 2.11. I agree with the Second Defendant that the reasoning of the Court rejecting that case applies also to a suggested implied agreement. The purpose of Court Orders is to spell out with precision what parties must do and the time for doing so. The same applies to agreements to vary time limits in Court Orders. In this case, the Order of Jefford J. specified when the stay would end: any written agreement would have to address that extant Court Order.

60. However, even that would not be sufficient: in UK Highways A55 Limited v Hyder at [51], Edwards-Stuart J. said : [2012] EWHC 3505 (TCC) …the rules give the court the power to impose a stay: it is not something that can be imposed by a party individually, or by the parties collectively, because the rules confer no such power. If the parties do not have the power to impose a stay by express agreement in the absence of an order of the court, and in my view it is clear that they do not, I cannot see how they can impose a stay by implication.

61. Thus, there could not have been a legally binding agreement between the parties to impose a stay. At most there could have been an agreement between the parties that an application for an order by consent to stay the proceedings would be made to the Court, subject, as always, to the Court’s discretion as to whether to make such order.

62. Accordingly, I conclude that there was an agreement to postpone the Without Prejudice meeting, and I am prepared to accept that that agreement complied with CPR r. 2.11. However, on the facts I conclude that there was no agreement to extend the stay of the proceedings, or, if there was one, it did not comply with CPR r. 2.11, and, even if it had complied with CPR r. 2.11, it would at most have been an agreement to apply to the Court for an order by consent.

63. Thus, the Court has a situation in which the parties have not agreed to an extension of the stay, and, indeed, the Defendants are opposed to such an extension because it would (or might) have the effect of depriving them of accrued limitation defence. The effect of CPR r. 7.6(3)

64. Rule 7.5 of the Civil Procedure Rules provides, subject to exceptions which do not apply in this case, that a claim form must be served within 4 months after the date of issue. Rule 7.6(1) provides that the claimant may apply for an order extending the period within which the claim form may be served. Rule 7.6(2) provides as a general rule that an application to extend the time for service must be made within the period for serving the claim form specified by rule 7.5 or within the period for service specified in an order extending the initial period. So the general rule is that an application for an extension has to be made before the stipulated period for service has run out. In the present case no such application was made before 26 February 2025, and indeed is only now made by Option B in the second application before me.

65. CPR r. 7.6(3) provides: If the claimant applies for an order to extend time for service of the claim form after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if – a) the court has been unable to serve the claim form; or b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and c) in either case, the claimant has acted promptly in making the application.

66. There have been a number of cases considering the effect of CPR r. 7.6(3).

67. In Vinos v Marks & Spencer , May LJ said: [2001] 3 All ER 784

20. The meaning of rule 7.6(3) is plain. The court has power to extend the time for serving the claim form after the period for its service has run out "only if" the stipulated conditions are fulfilled. That means that the court does not have power to do so otherwise. The discretionary power in the rules to extend time periods - rule 3.1(2)(a) − does not apply because of the introductory words. The general words of Rule 3.10 cannot extend to enable the court to do what rule 7.6(3) specifically forbids, nor to extend time when the specific provision of the rules which enables extensions of time specifically does not extend to making this extension of time. What Mr Vinos in substance needs is an extension of time - calling it correcting an error does not change its substance . Interpretation to achieve the overriding objective does not enable the court to say that provisions which are quite plain mean what they do not mean, nor that the plain meaning should be ignored. It would be erroneous to say that, because Mr Vinos' case is a deserving case, the rules must be interpreted to accommodate his particular case. The first question for this court is, not whether Mr Vinos should have a discretionary extension of time, but whether there is power under the Civil Procedure Rules to extend the period for service of a claim form if the application is made after the period has run out and the conditions of rule 7.6(3) do not apply. The merits of Mr Vinos' particular case are not relevant to that question. Rule 3.10 concerns correcting errors which the parties have made, but it does not by itself contribute to the interpretation of other explicit rules. If you then look up from the wording of the rules and at a broader horizon, one of the main aims of the Civil Procedure Rules and their overriding objective is that civil litigation should be undertaken and pursued with proper expedition. Criticism of Mr Vinos' solicitors in this case may be muted and limited to one error capable of being represented as small; but there are statutory limitation periods for bringing proceedings. It is unsatisfactory with a personal injury claim to allow almost three years to elapse and to start proceedings at the very last moment. If you do, it is in my judgment generally in accordance with the overriding objective that you should be required to progress the proceedings speedily and within time limits. Four months is in most cases more than adequate for serving a claim form. There is nothing unjust in a system which says that, if you leave issuing proceedings to the last moment and then do not comply with this particular time requirement and do not satisfy the conditions in rule 7.6(3), your claim is lost and a new claim will be statute barred. You have had three years and four months to get things in order. Sensible negotiations are to be encouraged, but protracted negotiations generally are not. In the present case there may have been an acknowledged position between the parties that the defendants' insurer would pay compensation; but it is not suggested that they acted in any way which disabled the defendants in law or equity from relying on the statutory limitation provisions and on the Civil Procedure Rules as properly interpreted.

23. I am not sure that Coleman J's interpretation of rules 7.6 and 3.10 and their relationship is entirely clear. In the first passage to which I have referred he is, I think, clearly saying that, in cases to which rule 7.6(3) applies, there is a discretion under rule 3.10 to grant what in substance is an extension of time, but the exercise of the discretion is limited to the considerations in rule 7.6(3). In the second passage, he may have been saying that, if the conditions in rule 7.6(3) are not fulfilled, there is no discretion and the application fails. There may be little or no practical difference between the two interpretations. But, in my judgment, for the reasons which I have given, the second is correct. On the simple facts of the present case, the conditions in rule 7.6(3) were not fulfilled and the court has no discretion. It is not therefore necessary to consider Mr Peirson's submission that, if there were a discretion, Coleman J's analysis of its ambit was erroneous. (Emphasis added)

68. In the same case, Peter Gibson LJ said:

27. A principle of construction is that general words do not derogate from specific words. Where there is an unqualified specific provision, a general provision is not to be taken to override that specific provision. Rule 7.6 is a specific sub−code dealing with the extension of time in all cases where the time limits in rule 7.5 have not been or are likely not to be met. The sub−code sets out in some detail what the claimant must do if he wants an extension of time and the circumstances in which the court may exercise the discretion conferred on it to extend the time: rule 7.6(3). That the circumstances specified in sub−paragraphs (a), (b) and (c) of rule 7.6(3) are the sole relevant conditions for the discretion to be exercisable seems to me to be made crystal clear by the words "only if". It is plain that the general power in paragraph 3.1(2)(a) to extend time cannot override rule 7.6. Nor, in my judgment, could the general power in rule 3.10 to remedy a failure to comply with a rule be pressed into service to perform the like function of, in effect, extending time. Even though rule 3.10 differs from rule 3.1(2) in not having wording to the effect of "except where the rules provide otherwise", that is too slight an indication to make rule 3.10 override the unambiguous and restrictive conditions of rule 7.6(3).

69. In Lacey v Palmer Marine Services Limited and another , Admiralty Registrar Jervis Kay QC said: [2019] EWHC 112 (Admlty)

50. In the light of the decisions referred to I have come to the conclusion that the Defendants’ submission, to the effect that where, as in the present case, a claimant has failed to serve a claim form before it expires, its sole resort is CPR Rule 7.6(3) so that the Court has no power in such circumstances to dispense with service of the claim form as a means of extricating a claimant from the consequences of late service, is correct. As the Claimant has not made an application pursuant to CPR Part 7.6(3) I conclude that it follows inexorably that the court has no power to make an order dispensing with service of a claim form.

70. In Boxwood Leisure Ltd v Gleeson Construction Services Ltd and another , O’Farrell J. said: [2021] EWHC 947 (TCC) ; [2021] BLR 459

37. In Godwin v Swindon BC [2001] EWCA Civ 1478 ; [2002] 1 WLR 997 ; [2001] 4 All ER 641 the Court of Appeal considered again the application of CPR 7.6 to the exclusion of other, more general rules, where the claimant posted the claim form within the extended time period granted by the county court but the deemed delivery provision in CPR 6.7 resulted in the claim form being served late. May LJ stated at [50]: “… The heart of the matter, in my view, is that a person who has by mistake failed to serve the claim form within the time period permitted by rule 7.5(2) in substance needs an extension of time to do so . If an application for an extension of time is not made before the current time period has expired, rule 7.6(3) prescribes the only circumstances in which the court has the power to grant such an extension. Just as Vinos v Marks & Spencer plc [2001] 3 All ER 784 decides that the general words of rule 3.10 cannot extend to enable the court to do what rules 7.6(3) specifically forbids, I do not consider that rules 6.1(b) or 6.9 can extend to enable the court to dispense with service when what would be done is in substance that which rule 7.6(3) forbids. If rule 6.9 did so extend it would be tantamount to giving the court a discretionary power to dispense with statutory limitation provisions... I do consider that rule 6.9 does not extend to extricate a claimant from the consequences of late service of the claim form where limitation is critical and rule 7.6(3) does not avail the claimant.” (Emphasis added)

71. She continued at paragraph [46]:

46. Drawing together the principles that are relevant for determining the application before the court, they can be summarised as follows: (i) If a claimant applies for an extension of time for service of the claim form and such application is made after the period for service specified in CPR 7.5(1), or after any alternative period for service ordered under CPR 7.6, the court’s power to grant such extension is circumscribed by the conditions set out in CPR 7.6(3): Barton v Wright Hassal l at [8] & [21]; Vinos v Marks & Spence r at [20] & [27]. (ii) The court has a wide, general power under CPR 3.10 to correct an error of procedure so that such error does not invalidate any step taken in the proceedings: Phillips v Nussberger at [30]-[32]; Steele v Mooney [19]-[20]. (iii) In the cases cited where the power under CPR 3.10 was exercised, there was a relevant, defective step that could be corrected: Steele v Mooney (defective wording of application for an extension of time); Phillips v Nussberger , Bank of Baroda , Dory (ineffective steps taken to serve the claim form on the defendants); Integral (defective service of particulars of claim). Doubts have been expressed as to whether CPR 3.10 could or would be used where no relevant procedural step was taken: Integral at [29]; Bank of Baroda at [17]; Dory at [76]. (iv) The court also has a wide, general power under CPR 3.9 to grant relief from any sanction imposed for a failure to comply with any rule, practice direction or court order: Denton v TH White Ltd [2014] EWCA Civ 906 ; [2014] BLR 547; [2014] 1 WLR 3926 ; [2015] 1 All ER 880 ; 154 Con LR 1 at paragraphs [23] – [36]. (v) A claimant is not entitled to rely on the wide, general powers under CPR 3.10 or CPR 3.9 to circumvent the specific conditions set out in CPR 7.6(3) for extending the period for service of a claim form: Vinos v Marks & Spencer plc at paragraphs [20] & [27]; Kaur v CTP at paragraph [19]; Elmes v Hygrade at paragraph [13]; Godwin v Swindon BC at paragraph [50]; Steele v Mooney at paragraphs [19] & [28]; Piepenbrock at paragraphs [81] & [82]; Ideal v Visa at paragraph [92].

72. And at paragraph [48]:

48. Boxwood is not entitled to rely on the court’s general power under CPR 3.10 to correct a procedural error so as to validate its failure to serve the claim form within the prescribed period. As set out above, a claimant is not entitled to rely on the wide, general powers under CPR 3.10 to circumvent the specific conditions set out in CPR 7.6(3) for extending the period for service of a claim form. Boxwood defines the procedural error as its failure to comply with the order dated 7 April 2020 and seeks to vary that order to validate late service of the claim form. This characterisation of the mistake does not change its substance, namely, a failure to serve the claim form within the period specified by the court pursuant to CPR 7.6. The remedy required would constitute an extension of time to that period. The court would have power to grant such extension of time only if the conditions set out in CPR 7.6(3) were satisfied. For the reason set out above, Boxwood would be unable to satisfy the conditions in CPR 7.6(3). It follows that the court would not have power to vary the order dated 7 April 2020, thereby retrospectively extending time for service of the claim form. (Emphasis added)

73. In Bellway Homes Limited v The Occupiers of Samuel Garside House , a case involving an alleged agreement to extend time, the Court said: [2025] EWCA Civ 1347 If a claim form has not been served in time, as the judge said, the only remedy for a claimant is to seek an extension of time pursuant to r. 7.6. The relief from sanctions regime under r. 3.9 and r. 3.10 is irrelevant …

74. These authorities, particularly the passages I have highlighted, make it clear that the Court will look at the substance of what is sought. If what is sought is a retrospective extension of time for service of a Claim Form or an order sidestepping the provisions of CPR r. 7.6, the Court will apply the provisions on CPR r. 7.6(3). In this case, whilst only Option B in the second application expressly seeking an extension of time for the service of the pleadings, in my judgment the real purpose of the applications, or at least one of the purposes of the applications, is to enable the Claimant to serve the Claim Form out of time.

75. In those circumstances, I consider that I should apply the provisions of CPR . 7.6(3).

76. There is no suggestion that CPR r. 7.6(3)(a) applies – the Court has never been asked to serve the Claim Form.

77. Whilst the Claimant does not formally concede the point, it seems to me impossible for the Claimant to establish that it was unable to serve the Claim Form, and indeed it is difficult to say that it took all reasonable steps to serve the claim form when it took no such steps. Thus CPR r. 7.6(3)(b) is not satisfied.

78. In those circumstances, it is not necessary for me to consider if CPR r. 7.6(3)(c) has been satisfied.

79. Accordingly, I conclude that the requirements of CPR r. 7.6(3) have not been satisfied. What is the effect of that conclusion?

80. In Barton v Wright Hassall LLP , Lord Sumption JSC said: [2018] UKSC 12 ; [2018] 1 WLR 1119

8. The Civil Procedure Rules contain a number of provisions empowering the court to waive compliance with procedural conditions or the ordinary consequences of non-compliance. The most significant is to be found in CPR 3.9, which confers a power to relieve a litigant from any “sanctions” imposed for failure to comply with a rule, practice direction or court order. These powers are conferred in wholly general terms, although there is a substantial body of case law on the manner in which they should be exercised: see, in particular, Denton v TH White Ltd (De Laval Ltd, Part 20 defendant) (Practice Note) Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] 1 WLR 3926 (CA), especially at para 40 (Lord Dyson MR and Vos LJ), [2014] 1 WLR 4495 (SC(E)). The short point to be made about them is that there is a disciplinary factor in the decision whether to impose or relieve from sanctions for non-compliance with rules or orders of the court, which has become increasingly significant in recent years with the growing pressure of business in the courts. CPR rule 6.15 is rather different. It is directed specifically to the rules governing service of a claim form. They give rise to special considerations which do not necessarily apply to other formal documents or to other rules or orders of the court. The main difference is that the disciplinary factor is less important. The rules governing service of a claim form do not impose duties, in the sense in which, say, the rules governing the time for the service of evidence, impose a duty. They are simply conditions on which the court will take cognisance of the matter at all. Although the court may dispense with service altogether or make interlocutory orders before it has happened if necessary, as a general rule service of originating process is the act by which the defendant is subjected to the court’s jurisdiction. (Emphasis added)

81. The same principle as that emphasised above has recently been applied by the Court of Appeal in Google LLC v Robertson . [2025] EWCA Civ 1262 at paragraphs [15], [16] and [77]

82. Having regard to those authorities, I accept that the effect of the expiry of the time for service of the Claim Form without application to seek an extension of time for so doing or the existence of circumstances bringing the matter within CPR r. 7.6(3), this Court has no jurisdiction to consider the applications before me.

83. If I am wrong about that, I consider that it would be wrong in the exercise of my discretion to grant any of the relief sought in either of the applications when to do so would be to circumvent the well established principles set out in the CPR and the authorities that to be successful any application which will have the effect of extending the date for service of the Claim Form should be made before the expiry of the period provided in the CPR, or as extended by an existing order of the Court.

84. On the above analysis, and on the authorities cited, this is not a case concerning relief from sanctions. Conclusion

85. For the above reasons I refuse both of the applications before me.