BL-2021-000228 - [2025] EWHC 2222 (Ch)

Fecha: 29-Ago-2025

Applications For Extensions Without Notice

Applications For Extensions Without Notice

48.

The Chancery Guide provides in [4.19] in relation to applications for an extension of time:

“The court may grant an extension of time for service of a claim form on an application by the claimant under CPR 7.6, and subject to the requirements of that rule. Such an application is invariably made without notice, and any order granted is vulnerable to being set aside on an application made later by the defendant under CPR 23.10, which may be a particular risk if an extension is granted at or towards the end of the limitation period.”

49.

The danger for the claimant was explained by Dyson LJ in Hoddinott at [50]:

“Thus if a claimant applies for and obtains an extension of time for service of the claim form without giving notice to the defendant, he does so at his peril. He should know that an order obtained in such circumstances may be set aside. He can take no comfort from the fact that the court has made the order…”

50.

The relevant duty of full and frank disclosure on a without notice application is set out as follows in the Chancery Guide at [15.32]:

“… on all applications made in the absence of the respondent, including applications made on paper, the applicant and their legal representatives owe a duty to the court to disclose all matters relevant to the application. This includes all matters of fact or law, whether known to the applicant or which would have been known had proper enquiries been made, which are or may be adverse to the applicant.”

51.

The principles have been discussed in many cases, often in the context of freezing injunctions as they were recently in Mex Group Worldwide v Ford [2024] EWCA Civ 959. In that case the Court of Appeal explained that where a court was considering whether to set aside an order made ex parte in circumstances where important information had not been disclosed a proportionate approach to assessing failures must be taken and the court is to be guided by the interests of justice.

52.

Constable J in Wragg made these points:

(i)

the ‘golden rule’ as stated in Knauf UK GmbH v British Gypsum Ltd [2002] EWCA Civ 1570 at [65] is as follows:

“an application for relief without notice must disclose to the court all matters relevant to the exercise of the court's discretion; that failure to observe this rule entitles the court to discharge the order obtained even if the circumstances would otherwise justify the granting of such relief; that a due sense of proportion must be maintained between the desiderata of marking the courts displeasure at the non-disclosure and doing justice between the litigants”

(ii)

the approach to be applied in the event of a breach of the duty set out in Arena Corp Ltd v Schroeder [2003] EWHC 1089 at [213] is as follows:

“(1)
If the court finds that there have been breaches of the duty of full and fair disclosure on the ex parte application, the general rule is that it should discharge the order obtained in breach and refuse to renew the order until trial.
(2)
Notwithstanding that general rule, the court has jurisdiction to continue or re-grant the order.
(3)
That jurisdiction should be exercised sparingly, and should take account of the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure.
(4)
The Court should assess the degree and extent of the culpability with regard to non-disclosure. It is relevant that the breach was innocent, but there is no general rule that an innocent breach will not attract the sanction of discharge of the order. Equally, there is no general rule that a deliberate breach will attract that sanction.
(5)
The Court should assess the importance and significance to the outcome of the application for an injunction of the matters which were not disclosed to the court. In making this assessment, the fact that the judge might have made the order anyway is of little if any importance.
(6)
The Court can weigh the merits of the plaintiff’s claim, but should not conduct a simple balancing exercise in which the strength of the plaintiff’s case is allowed to undermine the policy objective of the principle.
(7)
The application of the principle should not be carried to extreme lengths or be allowed to become the instrument of injustice.
(8)
The jurisdiction is penal in nature and the court should therefore have regard to the proportionality between the punishment and the offence.
(9)
There are no hard and fast rules as to whether the discretion to continue or re-grant the order should be exercised, and the court should take into account all relevant circumstances.”

(iii)

a breach of the duty may be “deliberate” notwithstanding a lack of intention to mislead the Court: Wragg at [30] – [34], as where it is known that prima facie the claims are time barred under the ordinary limitation period in English law but that is not disclosed: Libyan Investment Authority v JP Morgan Markets Ltd [2019] EWHC 1452 at [110].