COVID-19: Limitation Periods and Service of Proceedings

The coronavirus pandemic raises many issues for the court process, including in relation to limitation periods and service of proceedings. Potential claimants will be concerned about their ability to issue proceedings before expiry of the relevant limitation period. Potential defendants will be concerned about proceedings being served at their offices while they are closed and possibly not reaching them in sufficient time for them to respond.

Is there currently any advice from the English and Welsh courts?

The courts have not yet said anything specific about limitation periods or service of proceedings, and currently the usual rules apply.

If a party were served with a claim during the pandemic, the usual time to respond will apply in the absence of an extension being agreed between the parties or sought from the court. If a defendant fails to respond in time, the claimant would be entitled to enter judgment. The defendant could apply to set judgment aside and, provided it did so promptly once aware of the claim and there was a real prospect of successfully defending the claim, such an application would be likely to be looked on favourably. If the claim reached the defendant before the deadline to respond and there was a good reason for an extension, the claimant would be expected to act reasonably in agreeing an appropriate extension of up to 56 days (failing which the defendant would need to make an application to the court).  ‍

Is there anything that can be drawn from other areas?

The Government Legal Department announced that, in light of coronavirus, it would prefer email be used to serve legal proceedings on the Treasury Solicitor, while, in the personal injury sector, some insurers and claimant solicitors have signed a protocol (currently in effect until 20 April, with a joint review in the week commencing 13 April) which freezes limitation dates in personal injury cases and obliges claimants to respond constructively to requests for extensions of time to serve defences.‍

Is there currently any guidance on court deadlines?

Yes – a new Practice Direction came into force on 2 April 2020 (effective until 30 October 2020), which allows the parties to litigation to agree extensions of up to 56 days without formally notifying the court (rather than the current 28 days), as long as this does not put a hearing date at risk. The Practice Direction also requires the courts to take into account the impact of the pandemic in considering applications for extensions of time, as well as applications for adjournment of hearings and relief from sanctions.

The Law Society’s Coronavirus Advice and Updates state that, if you have court deadlines approaching, you need to apply for an extension in the normal way, but that the Society is discussing with HMCTS whether processes can be automated or streamlined to reduce the burden on litigants and their lawyers.

The Registry of the UK Supreme Court and Judicial Committee of the Privy Council has stated that time limits will be applied flexibly, and parties should bear in mind the overriding objective of the courts that unnecessary procedural disputes are discouraged.

What should businesses be doing?

This will depend on whether you are a prospective claimant or a prospective defendant, and on the nature of the dispute.

Insofar as limitation periods are concerned, it may be appropriate to consider proposing or agreeing to enter into a so-called “standstill” agreement to freeze the expiry of an approaching limitation period.

In relation to service of proceedings, if advance notice of a claim is given to a prospective defendant, it may (depending on the circumstances) be sensible for the defendant to indicate in writing that it is willing to accept service by email. On the other hand, it may suit a defendant better not to make things too easy for claimants. Ensuring that an appropriate postal re-direct service is in place should assist for any claims that are served by post.

Finally, although it does not assist specifically in relation to service of proceedings, businesses could consider adding something to their website and/or email footers to say that, in light of the current coronavirus pandemic, any documentation and communications should be sent by email to avoid handling of materials and delays in receiving hard-copy documents.