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PI and Civil Litigation

Law - practice - procedure

Anthony Gold Solicitors , 13 JUN 2016

Michelle Foran v (1) Secret Surgery (Ltd) (2) Powszechny Zaklad Ubezpieczen Spolka Akcy JNA (3) Wojciech Waclawowicz (4) EMC Instytut Medyczny Spolka Ackyjna [2016] EWHC 1029 (Ch)

Michelle Foran  v (1) Secret Surgery (Ltd) (2) Powszechny Zaklad Ubezpieczen Spolka Akcy JNA (3) Wojciech Waclawowicz (4) EMC Instytut Medyczny Spolka Ackyjna [2016] EWHC 1029 (Ch)

Procedure - Service - Extension of Time

[2016] EWHC 1029 (QB)

6 May 2016

Cox J


The claimant suffered unsightly scarring following elective cosmetic surgery carried out in Poland and brought a claim for medical negligence against a British tour operator and three Polish defendants. The claim was issued in May 2016 and in October 2015 the claimant’s solicitor issued an application for an extension of time for service on the three Polish defendants due to difficulties that they had been experiencing in complying with the deadline for service imposed by CPR 7.5 (2). This application was considered on paper and then at a hearing in January 2016 and granted by Master Roberts who considered the claimant to have valid reasons for an extension. The defendants appealed this decision and this appeal was granted with Cox J considering that Master Roberts had erred in his interpretation of the CPR.


The claimant underwent an elective abdominoplasty on 9 May 2012 in a Polish Medical Centre. As a result of this surgery she was left with extensive and unsightly scarring which required revision. She initially sought legal advice from a Polish Lawyer before settling with her current solicitors.

A letter of claim was sent on 27 March 2015 to which no response was received and the claim was issued on 6 May 2015 to protect the claimant’s position. There were four defendants named on the claim form, the specialist tour operator who was domiciled in the UK, and the Surgeon, Medical Centre and their insurers who were all domiciled in Poland.

Proceedings were served on the first defendant on 2 September 2015 in compliance with CPR 7.5(1) and on 2 October 2015 the claimant’s solicitors instructed Polish agents to effect service on the second, third and fourth defendants by 6 November 2015 so as to be compliant with the six month deadline imposed in CPR 7.5 (2). However, on 13 October 2015 they were informed by the Polish agents that only the Polish Court was entitled to serve proceedings and consequently determined that the Foreign Process Section at the High Court was the appropriate course of action. Therefore realising that they would be unable to effect service on the three Polish defendants by 6 November 2015 they issued an application for an extension of time.

This application was considered by Master Roberts who made an ex parte order on the papers for an extension of time for service of the Claim Form and Particulars of claim until 11 January 2016 at which point a hearing would be held to determine the issue.

At this hearing Master Roberts considered the issue with reference to CPR 7.6 and the overriding objective and determined that there must be a valid reason for an extension to be granted. Having heard the parties’ submissions he considered that the claimant did have a valid reason due to the combination of complex factors and that the claimant’s solicitors had taken reasonable steps to comply with CPR 7.5. He also mistakenly determined that the application had been made within the limitation period and there had been valid reasons for extending time.

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This decision was appealed by the defendants on the basis that no valid reason had been given for the delay of service by the claimant and that Master Roberts had failed to properly consider this. Additionally, they contested that Master Roberts had failed to consider the expiry of the limitation period and loss of the defendant’s potential limitation defence in his balancing exercise by erring that the application was made within the limitation period.

The claimant’s solicitors, on the other hand, argued that the combination of the foreign element, difficulties with translators and problems with the Polish agents all combined to render the case outside the norm and amount to a good reason for the request of the extension of time to be granted.

It was held that firstly, the six month period allowed for service set out in CPR 7.6 (2) was generous and took into account the difficulties experienced by the claimant’s solicitors which could be expected. The claimant had therefore failed to establish a good reason as they had merely set out a timetable of events in their evidence.

Secondly, it was held that the extension application had been made outside the limitation period and that Master Roberts had erred in this and neither address nor weight in balance the loss of the potential limitation defence to the defendants.

Thirdly, it was held that Master Roberts had been incorrect to deal with the application on paper and that such urgent applications involving the extension of time-limits should be dealt with by urgent hearing as per Collier v Williams [2006].

The appeal was therefore allowed.

 Sandra De Souza and Tom Dickinson, Anthony Gold Solicitors
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