Why pre-action protocol extensions in England must expressly deal with service deadlines

The recent Technology and Construction Court (TCC) decision in Galliford Try Construction Ltd v Arcadis Consulting (UK) Ltd & Ors provides a reminder of the importance of complying with limitation deadlines. In particular, the court considered the importance of agreeing to extend limitation deadlines and ensuring timely applications are made to the court for any such extensions – particularly in the context of stays for compliance with the pre-action protocol in the context of protective proceedings.

Procedural background

Protective proceedings were issued by Galliford Try one day before the expiry of a contractual limitation period in 2024. A stay was then granted to allow the parties to comply with the construction and engineering pre-action protocol.

The court ordered the protocol timetable which included a without prejudice meeting (which was subsequently extended). The stay of proceedings “froze” the remaining time for service so that the final date for serving the claim form fell four days after expiry of the stay.

When it became clear that diaries and expert availability would not allow the meeting to take place on the revised date, all parties agreed by email to move to a date after the last date for service of the claim form (albeit this was not acknowledged by the parties in correspondence).

Crucially, the agreement to move the meeting was never accompanied by an application or consent order to extend the stay or to extend time for service of the claim form. When the stay and the service deadline expired four days later, the claim form had not been served nor had the claimant applied to extend the period for service.

On the question of whether there was an express or implied agreement to extend the period for service, the claimant argued that because the parties had agreed to hold the protocol meeting after the service deadline, it was implied that the stay and the period for service had been extended in parallel.

TCC decision

The court rejected this argument. It held that, although parties may validly agree to vary pre-action steps under Civil Procedure Rules (CPR) 2.11, variations expressed or implied by email are not sufficient to extend a stay of proceedings – only the court may order such extensions (in the context of stays of proceedings).

The court also found there was no basis for implying that the defendants had agreed to give up accrued limitation rights, and no necessity to imply such a term. Accordingly, the court concluded that the parties agreed only to postpone the without prejudice pre-action meeting with no agreed implication on periods for service of the claim form.

The finding was fatal because, by the time the claimant applied for relief, the service deadline had already expired and the claimant's claim was now time barred.

Once a service deadline has passed, CPR 7.6(3) strictly limits the court’s ability to extend time and where a claimant has not taken all reasonable steps to effect service, as the claimant failed to here, the court cannot use general case-management powers to sidestep this rule.

Osborne Clarke comment

The judgment has clear implications for clients. Where parties are engaged retrospectively in the pre-action protocol in the context of stayed protective proceedings, careful consideration ought to be given to such engagement, the time the parties are engaged and the underlying implication on procedural deadlines.

Unless a stay and the deadline for service are expressly dealt with at the same time, there is a risk the claim will be vulnerable to expiring, which may ultimately time bar the claim if it was already issued protectively.

While sometimes unavoidable, timely commencement of claims (and early compliance with the pre-action protocol) will help negate a claim becoming time barred on a procedural technicality.

This Insight was written with the assistance of Krystal Wachira, trainee solicitor at Osborne Clarke.