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Litigants Warned Against ‘Dicing With Procedural Death’

A local authority that ‘diced with procedural death’ after launching proceedings against allegedly negligent architects hard up against the expiry of the relevant limitation period has had its substantial claim struck out by the Technology and Construction Court.

The Council had accused the architects of negligence and breach of contract in the design of a school science block extension which had been badly affected by rising damp. It issued a claim form just within the limitation period, but service was delayed due to the Council’s slow performance of the pre-action protocol.

The Court extended, and then re-extended, time for service. However, in upholding the architect’s appeal, the Court noted that it ‘should have been obvious’ to the Council that it was imperative to comply promptly with the protocol so that service could be achieved by the relevant deadline.

The Court had words of warning to other litigants: “Where a party issues protective proceedings hard up against the expiry of the limitation period, it is expected to pursue those proceedings promptly and effectively.

“If it subsequently seeks and obtains orders extending time (for service) without notice to the other party, it dices with procedural death. These simple propositions should be known to all professionals conducting litigation. They were established long before the recent reforms of the Civil Procedure Rules.”