Service of claims and extension of time

A failure to abide by court rules meant that a judicial review claim challenging the grant of planning permission for the Bristol Sporting Quarter project failed at the first hurdle. Kary Withers explains why.

Case details

In a case involving a catalogue of errors, the importance of strictly complying with deadlines and the Court rules has been highlighted again in what the Judge described as an “unusual” case in ETM Contractors v Bristol City Council and Esteban Investments Limited [2024] EWHC 2263 (Admin).

The claimant, ETM, sought to challenge the grant of outline planning permission by way of judicial review. ETM claimed there were errors in the Council’s decision-making relating to the issue of noise at the proposed development, and the effect of the proposed development on the claimant’s operations.

However, errors in filing and service meant that the challenge to the grant of planning permission failed at the first hurdle, without the merits of the claim being considered at all by the Court. 

Failure to meet deadlines

It was accepted that the claim needed to be brought within six weeks of the Council’s decision to grant outline planning permission. The claimant’s solicitors were eight days late in filing the claim and then later failed properly to serve the claim. The claimant made an application for an order to extend the time for filing the claim and serving it or validating service by alternative means.

In the afternoon of the last day for filing the claim (3 October) the claimant’s solicitors emailed the Court with hyperlinks to various documents, rather than filing the claim using the Court’s Document Upload Centre. The Court responded the same day explaining they were unable to access the documents. Unfortunately, the solicitor dealing with the case was unavailable for the remainder of that day and no further action was taken at that point. Following a series of emails with the Court over the following days, the claim was eventually filed and issued on 11 October (eight days late).

Unlike in statutory challenges, where the claimant has to issue and serve the claim within six weeks of the relevant decision, in judicial review proceedings a claimant has a further seven days to serve an issued claim. In this case, the Council’s website gave a postal address and the Council’s legal department’s email address for service of claims. In pre-action correspondence, solicitors for Esteban, the developer and interested party, had stated that they would only accept service via post.

Ignoring of required communication channels and specification

The claimant’s solicitors then compounded their error in filing the claim late, by failing to serve the claim to the specified addresses for service of the Council and Esteban. Moreover, the solicitors made no enquiry (as they were required to do by the Court’s rules) as to whether the Council and Esteban would accept service via email and whether there were any limitations (for example; on the size of attachments). In fact, the claimant’s solicitor received a standard out of office response confirming that Esteban’s solicitors do not accept service of proceedings via email.

In a yet further failure, the email purporting to serve the claim contained only hyperlinks to documents and Esteban did not receive an essential document – the Statement of Facts and Grounds.

A hard copy of the issued claim and supporting documents was later posted to the defendants but received two weeks after the deadline for service had passed.

The Judge’s conclusions

The findings outlined that:

• it was not clear why the filing of the claim had been left so late;
• that there was no evidence that the claimant’s solicitor had made any effort to consult the relevant practice direction or the Court’s guidance, and
• that the solicitor’s conduct fell short of the “utmost diligence and care” which was required.

The Judge explained it was clear that the use of hyperlinks is not permitted when filing claims. On balance, the Judge concluded that he should not extend time for filing the claim.

In relation to service, the Court of Appeal in Good Law Project [2022] EWCA Civ 355 decided generally the time for service of a claim in judicial review cases should not be extended unless the claimant has taken all reasonable steps to comply but has been unable to do so. Reasonable steps include a party’s solicitors complying with the rules relating to service of claims.

It followed that the claimant was forced to accept it had not taken all reasonable steps and so agreed the Judge should dismiss its application for extending the time to serve the claim. 

The Claimant also applied, however, for an order that it be able to rely on alternative service, which in this case was the service by email. In deciding such applications, the Court confirmed that the matters it will generally take into account are:

• whether the claimant has taken reasonable steps to effect service in accordance with the rules (in this case the Judge considered it had not)
• whether the defendant was aware of the contents of the claim (the Judge considered that the Statement of Facts and Grounds were an essential part of the claim and that Esteban was not aware of all of the grounds as the issues raised in the claim were different from those in pre-action correspondence)
• what, if any prejudice the defendant would suffer by the retrospective validation of non-compliant service of the claim.

The Judge considered that the developer would be prejudiced by the delay, and that there would be prejudice to the public interest. Good Law impressed that in Judicial Review cases, the need for promptness and speed is well known and that good public administration requires finality. In the circumstances, the Judge concluded that even if he was wrong not to extend time for filing the claim, that it would not be appropriate to validate service and dismissed the claim.

Supporting cases

Whilst not a judicial review case, an application for extending time for service for a Claim Form and/or for an order for substituted service was considered by the High Court in a different case of Keilaus v Houghton [2024] EWHC 2108 in which the claim was issued in time and the issue was whether the claim had been validly served before the four-month deadline. It appears the claimant’s solicitors had overlooked an email in which the defendant’s solicitors confirmed they would accept service (but did not agree to accept service via email). The claim was posted to the defendants and only emailed to the defendant’s solicitors.

Service on a defendant personally where solicitors have confirmed they are instructed to accept service is not valid and in the absence of express agreement to accept service by email, it is not a valid method of service. In the circumstances the Court again refused to extend time or make an order for substituted service.

In summary

Whilst it may seem harsh, these cases demonstrate the need for particular care in issuing and serving claims, particularly where there are tight limits. Provided a defendant does not deliberately put obstacles in the claimant’s way, a potential defendant is under no obligation to give any positive assistance to the claimant.

Kary Withers and Chris Charlton are partners at Clarke Willmott. Andrew Byass of Landmark Chambers was instructed to represent Esteban.