Service of a claim: Watch the clock, there are no second chances - Galliford Try Construction v Arcadis Consulting

Limitation periods and procedural time limits must be strictly observed, that is the reminder from the recent decision in Galliford Try Construction Ltd v Arcadis Consulting (UK) Ltd & Ors (2025). That warning is not new, but the decision is also a reminder that the parties themselves do not have the power to impose or extend a stay of proceedings. They can only consent to an application for a stay, the discretion to make an order remains with the court. Agreeing to a stay of proceedings can be beneficial for all parties, especially where limitation issues arise, but the parties must not lose sight of the need to formalise this agreement with an order of the court.

The decision also graphically illustrates that if an application for an extension of time for service of a claim form is not made before time runs out, the consequences can be fatal to the claim. Except in limited specified circumstances, the court will not have the power to grant an extension for service of a claim form retrospectively, whatever the merits of a particular case.

Background

The dispute arose out of a multi-million pound project to build a library and history centre in Worcester. Practical completion was certified on 27 January 2012 and protective proceedings were issued on 26 January 2024 by the claimant (the design and build contractor) against four defendants who were consultants and sub-contractors engaged on the project. By order of the court, the proceedings were stayed until 22 February 2025 to enable the parties to comply with the Pre-Action Protocol for Construction and Engineering Disputes (the "Protocol"). The time for service of the proceedings was due to expire on 26 February 2025. By separate order, the parties agreed directions for compliance with the Protocol.

Under the agreed directions, a without prejudice meeting was to be held by 22 November 2024 but this date was extended to 31 January 2025 by a consent order. The parties reached a further agreement to extend the deadline for the without prejudice meeting to 31 March 2025. On the 6 March 2025, after the stay had expired and after the time for service of the pleadings had expired, the claimant applied to the court seeking an extension of the stay to the end of March 2025 and attaching a “draft Consent Order”. The terms of the draft order had not been agreed by the defendants who subsequently challenged whether the court had jurisdiction to make such an order. The claimant made a further application to extend the stay and the time for service of the claim form and particulars of claim.

The claimant accepted that there had been no express agreement to an extension of the stay but argued that an agreement to a stay was implied by the agreement to extend time for the without prejudice meeting.

Decision

No agreement to extend the stay of the proceedings

The judge found that there was no implied agreement to extend the stay as a result of the agreement to extend the time for the meeting. Had there been no limitation issue, then the meeting could have taken place after the stay ended.

In effect, the claimant needed a retrospective extension of the stay. The judge held that it was "impossible to conclude that the defendants impliedly agreed to a stay being granted retrospectively so as to deprive them of any limitation defences". The judge also considered it relevant that the agreement to extend the time for the meeting occurred before the existing stay had expired so there was still time for the claimant to take steps to protect its position. Accordingly, the judge held that there was no agreement to extend the stay of the proceedings and, even if there had been a written agreement to a stay, it would at most have been an agreement to apply to the court for an order by consent.

Extension of time for service of a claim form

The Civil Procedure Rules (CPR) permit a party to apply for an order extending the time period within which a claim form can be served. Except in two limited circumstances, the application should be made before the stipulated period for service has run out. Neither of the exceptions (the court being unable to serve the claim form or the claimant being unable to do so after taking all reasonable steps) applied in this case. As a consequence, the court had no jurisdiction to consider the claimant's application. 

Practical takeaways

The most obvious observation is not to leave either the issue or service of proceedings until the last minute. There will of course be times when this is unavoidable but in such a situation it is vital that a close eye is kept on the relevant deadline and that any agreement to extend that deadline is unambiguous and clearly documented, with a court order.

The key points to note from this decision are:

1. The CPR allow the parties, in certain circumstances, to vary the time specified to do an act by written agreement. The judge was prepared to accept in this case that an exchange of emails could amount to a written agreement. However, he did not accept that an implied agreement would suffice. The agreement the parties had reached must be clearly spelled out.
2. The CPR give the court power to impose a stay; it is not something that can be agreed by the parties. The parties can agree to consent to an application for a stay but they do not have the power to impose or extend a stay of the proceedings, the discretion to make such an order remains with the court.
3. An application for an extension of time must be made before the stipulated period for service has run out unless the limited exceptions in CPR r. 7.6(3) apply.
4. If an application for an extension of time is not made before the expiry of the time for service of the claim form, the court will not have jurisdiction to consider the application. This is not a situation where relief from sanctions can apply.

DAC Beachcroft LLP acted for the first defendant in this case.