Imperial Cancer Research Fund & Anor v OVE ARUP & Partners Ltd & Anor

Factual and Procedural Background

This opinion concerns an application by the Defendants to set aside an extension of time granted on 20 April 2009, which extended the period for service of a claim form until 22 July 2009. The claim form was originally issued on 22 December 2008. The Claimants applied for the extension on 15 April 2009 under CPR 7.6(2), supported by the first witness statement of Mr. Preston. The extension was granted without notice. The Claimants served the application and order on the Defendants on 1 May 2009, informing them of their right to apply to set aside or vary the order under CPR 23.10. The Defendants applied to set aside the order on 14 May 2009. The claim form has not been served on the Defendants.

Procedural objections raised by the Defendants were not maintained at the hearing, and the Claimants consented to an extension of time for the Defendants' application to set aside the order. The central issue is whether the order granting the extension of time for service of the claim form should be set aside. It is agreed that an application to set aside an order obtained without notice involves a rehearing of the issue rather than a review of the original decision.

The underlying claim arises from allegations of water ingress into the ground floor and basement of a newly constructed building at the Claimants' research laboratory centre. The Claimants allege defects related to engineering and design services provided by the Defendants as sub-consultants to the architects. Investigations and expert reports were necessary to particularise the claim properly. The Claimants encountered difficulties obtaining documents from the Defendants, which delayed preparation of the claim. The Claimants issued the claim form in December 2008 but required additional time for excavation works and expert investigations to finalise their case.

Legal Issues Presented

1. Whether the order made on 20 April 2009 extending the time for service of the claim form should be set aside.
2. The proper application and interpretation of CPR 7.6 regarding extensions of time for service of a claim form, particularly under rule 7.6(2).
3. The relevance and weight of reasons given by the Claimants for failing to serve the claim form within the original period, including the need for expert investigations and obtaining documents from the Defendants.
4. The impact of limitation periods on the discretion to grant or set aside extensions of time.

Arguments of the Parties

Defendants' Arguments

• The sole reason given by the Claimants for the failure to serve the claim form by the original deadline was the need for further time to particularise their case.
• This reason has been rejected in prior case law, where waiting for responses to letters of claim or expert reports to finalise particulars of claim is not a sufficient reason for extending time for service of the claim form.
• The correct approach would have been for the Claimants to serve the claim form within time and seek extensions for service of particulars of claim if necessary.
• The primary limitation period relating to the design works has expired, likely barring the Claimants' cause of action against the Defendants.
• Mr. Preston's second witness statement differs in emphasis from the first, and the court should approach these changes with caution, especially since the new reasons align with those rejected in Steele v Mooney.
• The Defendants submit that the order granting the extension of time should be set aside.

Claimants' Arguments

• The extension was necessary to allow investigations and obtain expert evidence to attribute liability among the Defendants, architects, and contractors.
• At the time of issuing the claim form, the Claimants were aware of defects but needed further excavation and expert investigation to particularise the claim properly.
• The Defendants' failure to provide requested documentation obstructed preparation of the claim and expert advice.
• The Claimants had to decide which parties to proceed against and could not responsibly serve proceedings without expert support.
• This case closely resembles Steele v Mooney, where extensions were granted due to the need for expert reports before serving a viable claim.
• The Claimants' solicitors behaved sensibly and responsibly in not serving the claim form prematurely.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hashtroodi v Hancock [2004] 1 WLR 3206	Application to set aside without notice orders involves rehearing, not review; discretion under CPR 7.6(2) to extend time; importance of reason for failure to serve claim form; incompetence of solicitors as a negative factor.	Applied to confirm that the court must rehear the application and evaluate reasons for delay; incompetence is a strong reason to refuse extension; distinguished from cases with good reasons.
Steele v Mooney [2005] 2 All ER 256	Extension of time justified where expert reports necessary to determine prospects of success; awaiting defendant's records justified delay in serving claim form.	Relied upon to support Claimants' argument that awaiting expert evidence and documents justified extension; court found Claimants acted responsibly.
Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806	Waiting for particulars of loss or cost assessments not sufficient reason to delay serving claim form; importance of whether claim is statute barred.	Defendants relied on this to argue delay was unjustified; court considered limitation but found other factors outweighed it.
Collier v Williams (sub nom Leeson v Marsden) [2006] EWCA Civ 20	Failure to serve claim form due to waiting for defendant response is insufficient; extension for particulars of claim may be justified but not for claim form service.	Defendants cited to argue Claimants should have served claim form; court distinguished facts and emphasized need for expert evidence here.
Glass v Surrendran (sub nom Collier v Williams)	Awaiting expert or accountant's report does not justify delay in serving claim form; extension more appropriate for particulars of claim.	Defendants cited to support refusal of extension; court acknowledged but found Claimants' need for expert investigations justified extension.

Court's Reasoning and Analysis

The court carefully considered the guidance provided by the cited authorities on CPR 7.6(2), which allows extensions of time for service of a claim form within the original period without strict threshold conditions, guided by the overriding objective in CPR 1.1. The court noted that the reason for failure to serve within time is always relevant to the exercise of discretion.

In this case, the Claimants issued the claim form within the limitation period but required additional time to obtain expert evidence necessary to particularise the claim properly. The defect first appeared in 2002, with remedial works performed but further flooding occurring in 2008. The Claimants engaged an expert who required excavation and inspection of the building, which imposed a functional burden and required time to arrange.

The Defendants delayed provision of relevant documents despite repeated requests, only supplying drawings in late April 2009, after the original service deadline. The expert's report was not completed until late May 2009. The court found that the Claimants' solicitors acted sensibly and responsibly in delaying service of the claim form until they could present a viable, particularised claim supported by expert evidence, aligning with the principles in Steele v Mooney.

The court acknowledged changes in emphasis between the Claimants' witness statements but found the underlying facts unchanged. It also considered the limitation periods, recognizing that some primary causes of action may be time-barred, but found this did not outweigh the justification for the extension given the possibility of secondary causes of action and later knowledge affecting limitation.

Finally, the court noted that while the Claimants did not comply strictly with the Pre-Action Protocol for Construction and Engineering Disputes, such breaches are generally relevant only to costs and do not determine the matter here.

Holding and Implications

The court DISMISSED the Defendants' application to set aside the order made on 20 April 2009, thereby upholding the extension of time for service of the claim form until 22 July 2009.

The direct effect is that the Claimants retain the extended period to serve the claim form. No new precedent was established; the decision applies established principles in CPR 7.6(2) and relevant case law to the facts of this case. The ruling underscores the court's discretion to grant extensions where expert investigations are necessary to particularise a claim and where the Claimants have acted responsibly and promptly.