Judge strikes out claim against council after claimant applies for more than ten extensions of time

A claimant who had been given more than ten extensions of time to serve his Claim Form and, thereafter, his Particulars of Claim in a case against Buckinghamshire County Council has had his latest application for an extension dismissed by the High Court.

The claimant in CDE v Buckinghamshire County Council [2022] EWHC 738 (QB) (23 March 2022) was a 21-year-old man who came to the UK in 2010 as an unaccompanied asylum-seeking child.

Buckinghamshire began looking after him in 2010. The claimant has numerous psychological and psychiatric disorders and contended that the defendant council, in failing in its duties to him in various respects over the course of several years, had caused or aggravated his mental health as well as leading him to follow a less successful lifestyle.

However, since issuing his claim in March 2017, he has been unable to formulate his claim leading to a string of applications for an extension to serve the Claim Form, and, thereafer, to serve his Particulars of Claim.

On his eighth application, made in February 2020 and seeking an extension of time for service of the Particulars of Claim to September 2020, the local authority sought to strike out the claim as an abuse of process.

In October 2020, the case came before Mr Justice Lavender. The judge accepted submissions that drafting the Particulars of Claim would be a "substantial exercise", since it involved collating and considering a substantial quantity of medical and other records which had been gathered from different sources, obtaining instructions thereon from a claimant with mental health problems and obtaining a report from an independent social worker.

Mr Justice Lavender declined to make the order on an 'unless' basis but added that "since it is a substantial extension, I will order that any application for further extension of time must be made by 17 March 2021".

Following this, a further three deadlines were agreed upon and missed, leading to an application made in February 2022, which came before Master Thornett.

The application was initially made in October 2021 after missing a September deadline but was procedurally unsuccessful. As a result, the Claimant only successfully applied on 8 February 2022, which was the application in hand before Master Thornett.

The delay between September 2021 and February 2022 was "without question, serious and significant," the judge said.

He added: "Even as at 15 September 2021, there would have been only modest room for requesting a further short extension of a few days because, for example, a signature needed to be obtained or a date checked. On any view, however, had the proposition been made at 15 September 2021 that the Claimant needed a further six months it would have seemed remarkable.

"One asks, therefore, whether good reason has been made out for this additional period of time having been unilaterally claimed by the Claimant and whether, in all the circumstances of the case, permission for late service should be granted."

The judge applied the guidance in Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906 (04 July 2014), which says a judge should address an application for relief from sanctions in the following three stages:

• The first stage is to identify and assess the seriousness and significance of the "failure to comply with any rule, practice direction or court order" which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages.
• The second stage is to consider why the default occurred. 
• The third stage is to evaluate "all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]".

"Although these are separate strands within the guidance and reasoning in Denton, marking different considerations, I find the exercise very closely related in this particular case," the judge said.

He noted the sensitive nature of the claimant's case and the difficulties in preparing and presenting it. He also acknowledged that despite the delays stemming back to 2017, the claimant was about to be in a position to comply with the original order. Draft Particulars of Claim had been produced and, the claimant emphasised, there was sufficient confidence that the psychiatric report would be available that the claimant would submit to an 'unless' order.

"I remind myself, however, that many parties in breach of an Order either have complied by the time of the hearing, or shortly will be able to," the judge noted. "It cannot be that late, or imminently promised, compliance is sufficient reason alone to justify relief. Were that the case, then very few cases could be refused and compliance with court rules and directions would mean nothing."

"The critical point, I am satisfied, is the markedly extended period the Claimant has taken in order to now be able confidently to assert that compliance is at hand," he said. This period had to be set in the context that the very reasons explaining it were far from new, "either conceptually or in terms of actual case preparation", he noted.

"They had been mentioned as active months before the hearing before Lavender J and certainly did not become active only upon the commencement of the substantial extension period he granted. Further, there was then a very extended period during 2021 when the same factors were relied upon. I am satisfied those factors had been capable of far greater advancement and development during the period of consensual extensions, for the reasons discussed.

"I do therefore do not accept there had been good reason for the delay during the period expiring on 14 September 2021 even though the need for 'good reason' in the sense of Denton breach does not arise because the Claimant was not then in breach."

The judge added that as the period under consideration already started with an unfortunate history, the "Claimant therefore has to satisfy the court the further and 'relevant' delay nonetheless arose for good reason; or, even if it did not, the Claimant should see the permission sought having regard to all of the circumstances of the case".

A good reason for the delay from September to February had not been made out, the judge said. He found that from the time the claimant's solicitors knew that the September 2021 extension had expired without agreement as to further extension, there was a need for "considerable promptness" in applying to the court for direction.

The judge said: "Quite simply, the Claimant has not made this application at all promptly. It is just under five months late, with the intervening October 2021 ineffectual Application providing no mitigation whatsoever and, to the contrary, serving more as an aggravation to the Claimant's predicament."

He did not accept the claimant's counsel's attempt to define the period of delay as being limited to that between when an offer was made in December 2021 and its rejection in late January 2022.

"I am not in a position to assess the viability of that offer, nor do I think that would be a particularly valid approach anyway. The more relevant observation is whether it was reasonable to delay compliance with the order because an offer was being made. I do not accept that it was," he said.

Neither did the Master accept the claimant's submission that he had been obliged to obtain a full psychiatric report, and so, even had the application been made sooner, the same evidential predicament would have arisen.

"I do agree that some confidence has to be established by the Claimant's legal representatives that an arguable case of some loss having been incurred owing to at least certain of his allegations of breach before the Litigation Friend could commit herself to signing off Particulars of Claim with a Statement of Truth. However, to seek to pursue to conclusion a full Part 35 report in the face of already significant delay to the court timetable, yet without promptly applying to the court for direction, strikes me as not merely a counsel of perfection but, against this history, inappropriate. It smacks of the 'cavalier attitude' referred to in North Midland Construction."

Master Thornett later added that, regardless, it ought to have been possible for the claimant to commission and obtain a preliminary psychiatric opinion at a far earlier stage.

In concluding, the judge said: "I find nothing in all the circumstances of the case as mitigates what is an admittedly serious breach for which there has been very poor explanation. Even had an Application appropriately been made before the expiration of the 14 September 2021 extension and had come to hearing before the end of 2021, I am by no means persuaded that it would have succeeded. The court would have needed considerable satisfaction that matters were well in hand.

"The Claimant's representatives' failure to apply either promptly or correctly until February 2022, and their choice instead to delay by several further months without reference to the Defendant or the court whilst they continued to make good the delay, represents a significant failure to have sufficient regard for compliance with rules, practice directions and orders. It constitutes a significant failure to conduct litigation efficiently and at proportionate cost."

Adam Carey