Claimants and practitioners must be mindful of the period in which a claim form must be served after filing.

In Viner v. Volkswagen Group Limited [2018] EWHC 2006 (QB) Senior Master Fontaine refused the claimants’ application to extend time to serve a claim form that had been filed but not served.

The Issue

In order to create leverage, claimants sometimes issue claims at court, but do not serve them. They then have four months to serve the claim if the leverage they have sought to gain has not yielded results. This claim shows that claimants and practitioners need to be aware of the time period, and either serve the claim or apply for more time before the period expires.

Background

The case concerns a group action litigation brought by clients of two law firms against Volkswagen AG. The automaker is accused of manipulating the results of emissions tests in some of its diesel vehicles. Volkswagen UK (VW UK) is not a named defendant in the proceedings, however, a firm of solicitors based in Chesterfield, Your Lawyers, attempted to bring a claim against VW UK on behalf some of the claimants. Your Lawyers issued a claim against VW UK in January 2016, however, the firm chose not to serve the claim form within its period of validity. Your Lawyers subsequently applied for an extension of time to serve the claim until after the separate group litigation issues had been determined.

Judgment

Senior Master Fontaine refused Your Lawyer’s application for an extension, finding in her judgment that the reasons advanced in support of the application were “simply not credible”. In witness evidence which ironically was served late, but which the court took into account as it caused no prejudice to VW UK, Your Lawyers alleged the reason the claim form was not served in time was because “it is appropriate that dialogue is entered into with the parties to seek to establish an agreed approach as to how to [progress] such a claim.” The judge held that this reasoning did not ring true, as Your Lawyers rejected the offer of a seven-day extension from solicitors for VW UK, asserting that service would be effected within the deadline for service. Counsel for Your Lawyers characterised the failure to serve the claim as a “misjudgement”. In light of the foregoing, the judge held rather than finding a misjudgement on the firm’s part, “there was a deliberate decision not to serve the claim form, and there was no good reason not to do so.” Moreover, the judge held that there were two proper courses of action that “would have been obvious to a competent litigation practitioner”:

• Serve the claim form, and if appropriate apply for a stay; or
• Apply to the court for a different order when a notice of discontinuance is served

Comment

Filing a claim and sending it to a defendant, rather than effecting service, demonstrates:

• A claimant’s readiness to pursue litigation, as the claimant has already incurred legal fees in preparing a claim
• A claimant’s intention to pursue a claim, as the claimant has incurred the court filing fee

After filing a claim, a claimant then has four months to effect service. In the intervening period of time a claimant can then pursue a settlement strategy, without having to incur the time and cost of pursuing proceedings in court. This case highlights to claimants and litigation practitioners the need to be cognisant of the period of time in which a claim form must be served after filing.