Successful defence of Claimant’s application to extend time for service of Claim Form

Clyde & Co were instructed by Hiscox to represent their Insured, a chiropractor, in respect of a clinical negligence claim concerning an alleged delay in diagnosing Cauda Equina Syndrome resulting in life changing injuries to the Claimant.

The Claimant made an application (on the day of expiry of the 4 month validity period) to extend time for service of the Claim Form, Particulars of Claim, Schedule of Loss and Condition and Prognosis evidence.

Application to extend time for service of the Claim Form

The law

The Court has the power to order an extension of time in which to serve the Claim Form and accompanying documents under CPR 7.6. The application was prospective, so the matter fell within CPR 7.6(2). 
Any application must be supported by evidence (CPR 7.6(4)(a)). Despite the Claimant having made the application in April 2026, the Claimant did not serve any evidence in support of his application until 5 calendar days before the hearing in July 2026. The Claimant’s evidence in support of his application was not provided until after we had filed and served our own evidence in objection to the same. The failure to serve evidence in support of the application until the eleventh hour had two adverse consequences:-

1. The Defendant could not consider the merits of the application in an appropriate timescale.
2. The Defendant was deprived of the opportunity to respond to the points made in support of the application when serving its own evidence.

Application in this case

It is incumbent on the Claimant to justify why such an extension of time is required. The Claimant asserted that the following matters delayed investigation of the claim: a) Alcoholism/ depression on the Claimant’s part; (b) Delays in obtaining medical records, which had resolved by June 2025; and (c) Acquisition of the Claimant’s solicitors firm by another solicitors firm.

We argued that none of the foregoing offer any explanation at all as to why the Claim Form, as opposed to other documents, had not been served. It was not suggested that there was any issue in identifying the relevant parties and/or the addresses at which service should be affected. The Claimant did not explain why the Claim Form could not have been served and an application made for a stay. 

We argued that there was simply no proper justification for the failure to serve the Claim Form, and that an extension ought not to be granted. 

The overriding objective requires that cases are dealt with justly and at proportionate cost. The extension sought would not further the same for several reasons. Until the Defendant had been served with the Claim Form and Particulars of Claim, he would not be on an equal footing with the Claimant as he would be unaware of the specific nature of the claim faced and could not properly investigate the same. He could not fully participate in the proceedings until served with the same. Further, the dispute would turn in part on the different recollections of the parties in relation to the key appointments and the further in time we get from these events, the more the Defendant’s memory would be likely to fade. Allowing a further delay runs contrary to the aim of ensuring the Defendant can give his best evidence. The delay would also increase costs and result in the matter not being dealt with expeditiously. The parties would not be able to engage in any meaningful attempts at ADR until the outstanding documents were served.

The Defendant had been reasonable in granting extensions to limitation (totalling 21 months) and the Claimant had failed to provide any proper justification for the failure to serve the Claim Form and accompanying documents. If the application was granted, the Defendant would suffer prejudice in losing a limitation defence.

Outcome of the hearing

The Judge held that there was no good reason for the delay in serving the Claim Form. The need to obtain funding, delay due to pagination of medical records and acquisition of the Claimant’s solicitors were not good reasons for the delay. The Claimant had progressed at an overly leisurely pace. It had been 2 ½ years since solicitors were first instructed and the Claimant was still not ready to serve or formulate the case properly. The Defendant had not been served and only had a vague idea of the Claimant’s injuries, condition and financial loss.

The Claimant chose to make his application on the last day the Claim Form was valid which was a great risk. The Defendant had already granted several extensions of limitation, reluctantly. There was no good reason to believe the Defendant would agree another extension. If he refused to do so, the Claimant knew he would be obliged to ask the Court to exercise its discretion in a situation where to do so would deprive the Defendant of what would be, in substance, a limitation defence. The Claimant could have made the application in good time so it could be determined before expiry of the Claim Form, so it could have been served within the four-month period if permission was refused.

The Claimant had not shown a good reason for the extension sought. 

The Judge considered the prejudice to the Defendant and held it was not just the loss of the limitation period but also the prolonged uncertainty over a claim dating from events over 5 years ago. 

The Claimant’s application was dismissed. The Claimant was ordered to pay the Defendant’s costs of the action. 

The claim now proceeds against the remaining Defendants who did not oppose the Claimant’s application. 

Feedback from Hiscox and the Defendant

“We are pleased with the outcome of this case, and it serves as an important reminder that claimants must have a good reason to delay service of a claim form. We had been more than reasonable in agreeing multiple extensions to the limitation period but could not continue granting extensions indefinitely. By maintaining a robust position and declining any further extensions, we achieved the right outcome for our policyholder.” (Hiscox)

“…you guys have been amazing, you helped me deal with this while all along minimising my stress, I honestly can’t thank you guys enough…You and the team have been super stars…’’ (the Defendant) 

Case comment

This case is a stark reminder of the strict rules relating to service of the Claim Form. Clyde & Co’s healthcare team have significant experience in supporting healthcare professionals and providers throughout these difficult cases and achieving successful outcomes.