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

In determining whether to extend time the Court will not finally determine a question of limitation arising. Instead as Longmore LJ explained in City & General (Holborn) Ltd v Royal & Sun Alliance Plc [2010] EWCA Civ 911 at [7]):

“It is well-settled that when debatable issues of limitation arise, it is inappropriate to attempt to decide them on an interlocutory application for an extension of time for service of a claim form. If the claimants' argument that the claims are not time-barred is correct, they can always begin a fresh action in which, if a time-bar is asserted, it can be adjudicated upon. It is enough for a defendant to show that he might be deprived of a defence of limitation if time for service of a claim form is extended; if he can show that, an extension should not be granted or, if granted without notice, such extension should be set aside, see Hashtroodi v Hancock [2004] 1 WLR 3206 [18] and Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806 [52].”

Similarly, in a case where there are arguments about when each claim became time-barred, it will not be appropriate to consider each of the claims separately and come to a separate conclusion about limitation in respect of each: see Wragg at [102].

A failure to draw to the Court’s attention possible limitation defences on a without notice application to extend time is of particular importance. Constable J in Wragg said at [103]:

“I would add that the Judge does not appear to have refocussed, when considering the applications for an extension of time, upon the failure within the applications to give full and frank disclosure of the position relating to limitation. Unlike in the context of the Service Out Applications, the existence of potential limitation defences was highly material to the initial exercise of considering whether, and if so for how long, an extension of time ought to have been granted. The existence of limitation defences changed the very test the Judge had to consider and apply when considering the matter ex parte: it was not enough to show a ‘good reason’: the circumstances were required to be exceptional, in the sense of something out of the ordinary, as considered above. Seen through this lens, the conscious decision not to refer to limitation issues in the evidence supporting the Extension Applications was, in my view, a significantly more serious transgression of the duty of full and frank disclosure. In the exercise of my discretion this factor, of itself, militates much more strongly towards setting aside the order and strongly supports the determination I have otherwise arrived at…”