Defendants’ applications successful as court refuses jurisdiction

  • 14 February 2023 14 February 2023
  • UK & Europe

  • Casualty claims

Clyde & Co's application for an order pursuant to CPR 11 was successful. The Judge refused jurisdiction to hear the claimant's pleural thickening/asbestosis claim.

Defendants’ applications successful as court refuses jurisdiction

The claimant brought a claim for pleural thickening/asbestosis against the insured, his employer from 1968 to 1993. He was employed as a fitter and alleged that he was exposed to significant levels of asbestos by working in the vicinity of laggers. We were instructed to investigate and defend the case pre-litigation.

The claimant issued but did not serve the claim form. His solicitors then made an application without notice to extend time for service. This was granted by the court. A further application was then made to extend service again. Two months after the claimant made this second application the claim form was served. At this point the application had not been approved.

The claimant was seeking to extend time for service due to an issue regarding the identity of one of the co-defendants. The reason given was that the claimant did not have medical evidence to confirm the claim was viable. In our view this was not correct. It was clear the claimant had obtained medical evidence from an expert which was more than sufficient for service. There was also a further medical report dated after the issue of the claim form, but before expiry of the initial four month period for service. We did not understand why the claimant said he was unable to serve the claim form with medical evidence.

We were unhappy with claimant’s solicitors in the making of the first application without notice. There was no evidential basis to exercise discretion to extend time in this case. It was our case that the claimant was in a position to validly serve proceedings within the initial four month period. There was no justification for the initial extension and certainly no justification to grant a second extension.

Along with the two co-defendants we made an application for an order pursuant to CPR 11. We requested an order that the court declares it has no jurisdiction to hear the claim or should not exercise any jurisdiction it may have.

We initially sought to set aside original extension. The Judge said she had the power to do so, but that it was too late when our applications were made. Regarding the claimant’s second extension application the Judge was satisfied that the claim form had not been affected validly and in time. The defendants’ applications were successful and the Judge refused jurisdiction. She found there was no good reason not to serve, no attempt had been made to serve and that would be wrong to exercise discretion to allow a further extension where there was no good reason. In addition, limitation was clearly a live issue.

The claimant does have the opportunity to re-serve the claim form again if he feels limitation is not an issue. However, the Judge did not mention re-service in her judgment. She did note, however, that the claimant has the ability to sue his solicitors so we are doubtful a further claim form will be served.

The claimant’s claim was limited to £15,000, though we believe with special damages the likely value would have been around £30,000. Combined with the claimant’s costs to trial overall savings for our insured are in the region of £110,000. Along with the co-defendants our early application was merited and prevented additional defence costs incurring. In addition, the claimant’s solicitors receive no payment for their work undertaken on the case. Understandably all defendants are pleased with the swift end to the matter.


Additional authors:

Matthew Archibald

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