Citation: [2025] EWHC 3002 (TCC)
James Thompson, James Frampton and Peter Brogden acted for the Claimant, the Second Defendant and the Third Defendant respectively in a recent application for extension of a stay of proceedings and an extension of time for service of the Claim Form and Particulars of Claim.
The case concerned the design and construction of a multi-million-pound city centre library, history and customer centre for the public and the University of Worcester. Under a Building Contract dated 29 January 2010, the Claimant undertook the financing, design, construction, completion and commissioning of the project. The Defendants were various service providers and sub-contractors engaged during the project. The Claimant issued protective proceedings on 26 January 2024.
The Court granted a stay to 22 February 2025.
There was subsequently a separate court order, by consent, setting a timetable for compliance with the Pre-Action Protocol.
A Without Prejudice meeting was scheduled to be held by 22 November 2024, but all parties agreed by email to postpone it beyond 31 January 2025 for a deadline of 31 March 2025.
The Defendants’ position was that the stay expired and the 4 month period for the claim form then recommenced, with the Claimant failing to serve the Claim Form by 26 February 2025 as required.
The key issues for determination were whether that agreement necessarily also involved an agreement to a stay for a commensurate period, and whether an extension of time for service of the Claim Form and Particulars of Claim was required in any event.
The TCC refused the application to extend the stay of the proceedings and/or time for service of the Claim Form. On the facts of the case, there was no agreement to extend the stay of the proceedings, and even if there was one, it would not have complied with CPR r. 2.11. An agreement to the postponement of the meeting alone was not evidence that a stay was also agreed. The judge found 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. Nothing which the Defendants did or said before the expiry of the stay and the date for service of the pleadings amounted to an implied agreement that the Claimant need not take appropriate steps to protect its position in the days remaining before the stay and then the 4 month period for service of the claim form expired.
The Court also held that a stay would have required an order of the court to take effect. The Claimant argued that the Court could grant a stay under its general powers in CPR 3.1(2)(g). However, as the Claimant sought a retrospective extension of time for service of the Claim Form, the judge held that he had to apply the provisions of CPR r. 7.6(3). It was a complete code where a party failed to serve a claim form in time. The judge concluded that the requirements of CPR r. 7.6(3) had not been satisfied, which meant that the Court had no jurisdiction to consider the applications.
The Claimants’ applications were refused and the claim form struck out accordingly.
James Thompson acted for the Claimant; James Frampton acted for the Second Defendant and Peter Brogden acted for the Third Defendant.
