Sodastream Limited (in liquidation) v Coates and others [2009] EWHC 1936 (Ch), [2009] All ER (D) 22 (Aug)
The following guidance on whether to exercise the discretion to set aside an order extending time to serve proceedings could be derived from previous authorities:
(i) an application to set aside an order extending time obtained on a without notice application was a rehearing of the matter, not a review of the decision to extend time;
(ii) the principal and frequently the only question was to determine whether there was a good reason for the claimant’s failure to serve the claim form within the period allowed by the rules;
(iii) if there was a very good reason for the failure to serve within the specified period, an extension of time would usually be granted, for example where the court had been unable to serve the claim form or the claimant had taken all reasonable steps to serve but had been unable to do so;
(iv) the absence of any good reason for the failure to serve was likely to be a decisive factor against the grant of an extension of time;
(v) the weaker the reason for failure to serve, the more likely the court would be to refuse to grant the extension;
(vi) whether the limitation period applicable to the claim had expired was of importance to the exercise of the discretion since an extension had the effect of extending the period of limitation and disturbing the entitlement of the potential defendant to be free of the possibility of any claim;
(vii) the fact that the claimant had delayed serving the claim form until the particulars of claim were ready was not likely to provide a good reason for the failure to serve;
(viii)the fact that the person to be served had been supplied with a copy of the claim form or was otherwise aware of the claimant’s wish to take proceedings against him was a factor to be considered; and
(ix) provided he had done nothing to put obstacles in the claimant’s way, a potential defendant was under no obligation to give any positive assistance to the claimant to serve the claim form, so that the fact that the potential defendant had simply sat back and awaited developments (if any) was an entirely neutral factor in the exercise of the discretion.
