Extension of time

Bournemouth & Boscombe Athletic Football Club Ltd v Lloyds TSB Bank plc [2003] EWCA Civ 1755

The claimant appealed against an order dismissing its application for an extension of time in which to serve particulars of claim and striking out its action against the defendant, which had granted a loan facility under an agreement which provided that on the occurrence of a specified ‘event of default’ the bank could terminate and demand repayment of the outstanding debt. The bank had purported to terminate the agreement and demanded repayment on that basis. The claimant argued that it was not in default and claimed damages of almost £29m for breach of contract. The claim form had been served on the last day for service in compliance with the Civil Procedure Rules 1998. The particulars of claim were served 11 days later. The bank applied to strike out the action on the ground that the particulars of claim disclosed no reasonable grounds for bringing the claim, or alternatively that they had been served out of time. The claimant applied under CPR rule 3.1(2)(a) to extend time for service of the particulars. The judge declined to exercise his discretion to extend time for service, concluding that the failure to comply with the CPR had been deliberate. The claimant contended that there was no basis for the judge’s conclusion that its failure to serve the particulars of claim in time had been deliberate, and that if the judge had balanced the prejudice that the defendant would suffer if an extension of time were granted against the prejudice that the claimant would suffer if it were not, he would have had to have concluded that time should be extended and the action be allowed to proceed.