[2025] EWHC 2485 (Ch)

I must now return to events in the 2019 English Partnership Claim. As I have already mentioned, this claim was begun in October 2019. The defendants were Iftikhar and his three other siblings. Although this is not formally in evidence before the court, Vaqar told me at the hearing that on 12 October 2019 he had sent copies of the claim form to the four defendants by post in Pakistan, but they were returned undelivered. He showed me one of the returned envelopes, addressed to Iftikhar.

On 31 July 2025, he sent to the court a written submission on this point, annexing photocopies of various posting receipts and tracking documents. He also attached a document apparently signed by his son Fahim as a certificate of service. Although his submission says that the certificate of service was filed on 17 October 2019, I have been unable to find it on the court file. But it does not matter. At this time Vaqar did not have permission to serve the proceedings out of the jurisdiction, and so, even if the documents had been delivered to their addressees, this could not have amounted to valid service.

There was then the hearing before Zacaroli J in December 2019 when he refused Vaqar’s application to transfer the County Court possession claim to the High Court to be tried with the 2019 English Partnership Claim. The contemporaneous skeleton argument prepared by leading and junior counsel on behalf of Vaqar for that hearing expressly accepted (at [9]) that the documents in the 2019 English Partnership Claim had not yet been served on any defendant. In fact, on 5 December 2019, Vaqar had made an application without notice for permission to serve the claim form out of the jurisdiction. On 17 December 2019, Deputy Master Bartlett had adjourned the application to be heard on notice to the defendants. The deputy master gave permission to serve the application for permission to serve out on Iftikhar by delivering it to Iftikhar’s solicitors in London, and on his siblings (the second to fourth defendants) at their home addresses in Pakistan. The order provided for the service of evidence and the submission of time estimates for the hearing and dates to avoid.

It is recorded in this order that Vaqar appeared by counsel at the hearing, but also that the serving party was Vaqar himself. So at that time Vaqar was acting in person, though using direct access counsel. This is confirmed by the notice of change of legal representative dated 6 February 2020 and filed at the High Court, which gave notice that he had instructed solicitors and “has not had previous legal representation in relation to this claim”. These solicitors then made an application dated 11 February 2020 for an extension of time for service of the claim form to 31 March 2020. In his witness statement in support of that application, dated 10 February 2020, Vaqar’s solicitor Mr Prakash Patel very properly explained why the claim form had not yet been served.

This included a reference to instructing counsel on a direct access basis in relation to this claim. Mr Patel went on to say:

“9.

Unfortunately, there was then a significant breakdown in the relationship between the Claimant and the counsel he had instructed and they were dis-instructed by him. I understand this to have been in December 2019.”

But there is no mention made in this witness statement of the application for permission to serve out which had been heard by Deputy Master Bartlett, and the order which he had made on 17 December 2019. Since it would have been relevant to the application now being made, I infer that the reason is because the solicitors did not know about it at that time. There is certainly no further reference to the order of Deputy Master Bartlett that I can see in the papers before me, and it appears to have been lost sight of.

At all events, on 19 February 2020, Deputy Master Hansen ordered that time for service of the claim form be extended to 4 PM on 31 March 2020. On 6 April 2020, Master Shuman extended time for service the claim form further to 4 PM on 30 June 2020. On 12 August 2020, on a further application to extend time, Master Shuman adjourned the hearing to 3 September 2020, so that further evidence in support could be filed. On 3 September 2020, Deputy Master Hansen extended time for service to 28 September 2020. On 28 September 2020, the same deputy master extended time for service further to 29March 2021.

On 25 September 2020, Vaqar’s solicitors applied to the court for permission to serve the defendants out of the jurisdiction at their residential addresses in Pakistan or elsewhere in Pakistan. Mr Prakash Patel made a witness statement, also dated 25 September 2020, in support of that application. (Footnote: ¹⁶) There is no mention in this witness statement of the earlier application for permission to serve out or of the order of Deputy Master Bartlett. Once again, I infer that this is because Mr Patel was not aware of them. By a further order of 28 September 2020, Deputy Master Hansen gave permission to Vaqar to serve the claim form particulars of claim on the defendants in Pakistan, giving each of the defendants 23 days after service in which to acknowledge service. The order records that the deputy master read the papers, but not that there was any attendance before him. I infer that the deputy master made his decision on the papers alone.

On 28 May 2021, Deputy Master Arkush further extended time for service of the claim form to 16 August 2021, adding “This is the final extension of time”. On 14 April 2022, however, Deputy Master Bowles (as he then was) extended time for service further to 28 August 2021 for the first and second defendants, and 12 July 2022 for the third and fourth. The timing of this last order is important, because it subsequently transpired that a copy of the claim form and particulars of claim had been sent to Pakistan and, according to Vaqar, but not Iftikhar, served on Iftikhar in Pakistan on 27 August 2021. (I will return to this question later.) So, at the time of the alleged service, the claim form had in fact expired, and the order of Deputy Master Bowles in April 2022 was retrospective in operation.

Iftikhar’s case is that he was aware of the order of Deputy Master Hansen of 28 September 2020, but that he never received the 2019 English Partnership Claim at his home address in Pakistan. It was only on 2 December 2024, after the decision of the Court of Appeal that Vaqar’s solicitors claimed (in correspondence apparently marked “without prejudice”) that Iftikhar had been served the proceedings at his home address in Lahore on 27 August 2021. And it was only on 5 December 2024 that Iftikhar’s solicitors became aware of the order of Deputy Master Bowles of 14 April 2022. On 9 December 2024 (two working days after 5 December) those lawyers issued an application for an extension of time for acknowledging service and for challenging the jurisdiction of the court, and on 10 December 2024 they served the application by email together with a form of acknowledgement of service on Vaqar’s then solicitors.

The evidence contained in the application notice of 9 December 2024 contains the following passage:

“14.

On 2 December 2024, during the course of without prejudice correspondence relating to the 2018 Possession Action, Vaqar's solicitors (‘Spencer West’) told Iftikhar's solicitors (‘Stephenson Harwood’) that Vaqar had served the 2019 Partnership Action at No. 11C, Shami Road, on 27 August 2021. On 5 December 2024, Spencer West provided Iftikhar with a copy of an order by Deputy Master Bowles dated 14 April 2022, by which the Deputy Master had retrospectively extended the validity of the Claim Form in the 2019 Partnership Action to 28 August 2021. This was the first time that Iftikhar or his legal representatives became aware of that order.”

At the hearing before me, Vaqar took the point that Iftikhar should not have referred to the information concerning the order of Deputy Master Bowles, because it was contained in “without prejudice” correspondence. He expanded on this in the written submissions dated 31 July 2025. Iftikhar’s response was that by his application of 9 December 2024 he was seeking an extension of time, and so he had to explain the long delay that had occurred.

In Unilever plc v The Proctor & Gamble Company [2000] 1 WLR 2436, 2444, Robert Walker LJ (with whom Simon Brown LJ and Wilson J agreed) said:

“(5)

Evidence of negotiations may be given (for instance, on an application to strike out proceedings for want of prosecution) in order to explain delay or apparent acquiescence. Lindley LJ in Walker v Wilsher, 23 QBD 335, 338 noted this exception but regarded it as limited to ‘the fact that such letters have been written and the dates at which they were written.’ But, occasionally, fuller evidence is needed in order to give the court a fair picture of the rights and wrongs of the delay.”

In my judgment, this is just such a case. It was not wrong to give this evidence to the court on that application.

Also in the email of 10 December 2024, Iftikhar’s solicitors made a request for documents and information connected with the application to the court for permission to serve out of the jurisdiction:

“1.

As made clear from the application, neither we nor our client have copies of the evidence and written submissions which have been relied upon by your client at the various ex parte applications seeking, inter alia, permission to serve the claim form out of the jurisdiction and various extensions of time for service, including the retrospective extension. Please provide the full complement of these documents.

2.

Similarly, we do not have copies of any orders made pursuant to those ex parte applications, save the order of Deputy Master Bowles dated 14 April 2022. Please provide copies. We should be grateful if, in respect of each order, you would provide a statement of when each order was served (and at what address) and provide evidence to support those assertions.

3.

Finally, we do not have a copy of the particulars of claim relating to claim BL-2019-001900. Please provide a copy.”

CPR rule 23.9 relevantly provides:

“(1)

This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice.

(2)

Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any supporting evidence must, unless the court orders otherwise, be served with the order on any party or other person –

(a)

against whom the order was made; and

(b)

against whom the order was sought.”

And, in Interoute Telecommunications (UK) Ltd. v Fashion Gossip Ltd, The Times, 10 November 1999, Lightman J said:

“It is the duty of counsel and solicitors, when they make an ex parte application for relief (and most particularly freezing injunctions) to make in the course of the hearing a full note of the hearing, or, if this is not possible, to prepare a full note as soon as practicable after the hearing is over, and to provide a copy of that note with all expedition to all parties affected by the grant of relief on that ex parte application. This is essential so that the parties affected may know exactly what occurred and the basis and material on which the order was made, and so that in this way they may be provided with the material to make an informed application for discharge.”

In Cinpres Gas Injection Ltd v Melea Ltd [2006] FR 36, Pumphrey J said:

“21.

The purpose of these rules is to ensure that the defendant must know if it is not present at the hearing what case it has to meet. There should therefore be a full note … ”

Iftikhar’s solicitors received no substantive response to their request, and wrote again on 18 December 2024. There was again no response. On 7 January 2025, Vaqar advised Iftikhar’s solicitors that he had served a notice of change of legal representative in the 2019 English Partnership Claim, and would now be acting in person. Iftikhar’s solicitors wrote to him on 13 January 2025, explaining that they had had no response to their requests to Vaqar’s former solicitors, and repeating their request to him. Vaqar’s response was sent on 15 January 2025, in an email dealing with a number of matters. The relevant part read as follows:

“Regarding your request for additional documents, my position is that you are not entitled to them. Your client has been aware of these proceedings for the past five years and has had ample opportunity to address these matters comprehensively.”

For the sake of completeness, I mention four other applications which have been issued in the 2019 English Partnership Claim, but which were not listed before me. These are (i) an application by Vaqar dated 30 December 2024 for judgment in default, (ii) an application by Vaqar dated 28 April 2025, accusing Iftikhar of contempt of court, (iii) an application by Iftikhar dated 9 July 2025 to strike out that application, and (iv) an application by Vaqar dated 21 July 2025 for various orders including deemed effective service of the 2019 English Partnership Claim. None of these was before me at the hearing on 29 and 30 July 2025, and I do not deal with them in this judgment.