Civil Claim

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Claimants and practitioners must be mindful of the period in which a claim form must be served after filing.

By Oliver E. Browne and Kavan M. Bakhda

In Viner v. Volkswagen Group Limited [2018] EWHC 2006 (QB) Senior Master Fontaine refused the claimants’ application to extend time to serve a claim form that had been filed but not served.

The Issue

In order to create leverage, claimants sometimes issue claims at court, but do not serve them. They then have four months to serve the claim if the leverage they have sought to gain has not yielded results. This claim shows that claimants and practitioners need to be aware of the time period, and either serve the claim or apply for more time before the period expires.

Background

The case concerns a group action litigation brought by clients of two law firms against Volkswagen AG. The automaker is accused of manipulating the results of emissions tests in some of its diesel vehicles. Volkswagen UK (VW UK) is not a named defendant in the proceedings, however, a firm of solicitors based in Chesterfield, Your Lawyers, attempted to bring a claim against VW UK on behalf some of the claimants. Your Lawyers issued a claim against VW UK in January 2016, however, the firm chose not to serve the claim form within its period of validity. Your Lawyers subsequently applied for an extension of time to serve the claim until after the separate group litigation issues had been determined.

By Dan Smith and Anna Hyde

The UK Supreme Court has rejected a formal “reliance” test to determine whether a defendant to a civil claim can rely on the claimant’s wrongdoing to defeat the claim, replacing it with a more fact-sensitive “range of factors” approach, which may expand cases in which the defence operates.

“No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act”, Lord Mansfield’s dicta in Holman v Johnson (1775)[i], encapsulate the English common law defence of illegality to civil claims.  The defence is based on the public policy that a person should not be able to benefit from their own wrongdoing and that the courts should not enforce claims that harm the integrity of the legal system.  It is a potentially far-reaching defence which can apply in any civil claim, and the recent case of Patel v Mirza[ii] indicates that all litigants should now consider it whenever allegations or evidence indicate wrongdoing.

However, whilst the rationale is clear, authorities have been less so. As Gloster LJ put it in the Court of Appeal, “it is almost impossible to ascertain or articulate principled rules from the authorities”[iii], either for the recovery of money or other assets paid or transferred under illegal contracts, or for the range of cases to which the defence might apply (e.g. to claims for contractual damages or performance, to claims in tort, or to restitutionary claims for unjust enrichment).