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

Pursuant to CPR rule 7.5, where a claim form is to be served out of the jurisdiction, it must be served within six months of the date of issue.

Lord Browne-Wilkinson explained in Dagnell v J.L. Freedman & Co (a firm) [1993] 1 WLR 388 at 393C that:

“The starting-point is that a defendant has a right to be sued, if at all, by means of a writ issued within the statutory period of limitation and served within the period of its initial validity.”

CPR rule 7.6 provides as follows:

Paragraph 8 of PD 7A provides:

In ST v BAI (SA) (t/a Brittany Ferries) [2022] EWCA Civ 1037 Carr LJ mentioned at [61] a number of the leading authorities on CPR 7.6(2) including Hashtroodi v Hancock [2004] EWCA Civ 652, Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203; Cecil v Bayat [2011] EWCA Civ 135; Al-Zahra (PVT) Hospital and Others v DDM [2019] EWCA Civ 1103 and, most recently, Qatar Investment & Projects Holding Co v Phoenix Ancient Art SA [2022] EWCA Civ 422, [2022] to which I was referred by counsel. I was also referred to the earlier case of JSC BTA Bank v Ablyazov [2011] EWHC 2988 (Comm) and the subsequent case of Wragge v Opel Automobile GMBH [2024] EWHC 1138 (KB).

Carr LJ explained:

“62.

For ease of reference, I summarise the relevant general principles as follows:

i)

The defendant has a right to be sued (if at all) by means of originating process issued within the statutory period of limitation and served within the period of its initial validity of service. It follows that a departure from this starting point needs to be justified;

ii)

The reason for the inability to serve within time is a highly material factor. The better the reason, the more likely it is that an extension will be granted. Incompetence or oversight by the claimant or waiting some other development (such as funding) may not amount to a good reason. Further, what may be a sufficient reason for an extension of time for service of particulars of claim is not necessarily a sufficient reason for an extension for service of the claim form;

iii)

Where there is no good reason for the need for an extension, the court still retains a discretion to grant an extension of time but is not likely to do so;

iv)

Whether the limitation period has or may have expired since the commencement of proceedings is an important consideration. If a limitation defence will or may be prejudiced by the granting of an extension of time, the claimant should have to show at the very least that they have taken reasonable steps (but not all reasonable steps) to serve within time;

v)

The discretionary power to extend time prospectively must be exercised in accordance with the overriding objective.

63.

Following up on the question of limitation, as noted in Qatar at [17(iv)] (and Al-Zahra at [52(3)]), it was stated in Cecil (at [55]) that a defendant’s limitation defence should not be circumvented save in “exceptional circumstances”. This is a phrase that needs to be approached with care; it is one about which the judge himself expressed reservations. At their outer limit, the words “exceptional circumstances” can be taken to mean “very rare” (or “very rare indeed”). In the present context, however, the phrase should not be taken to mean any more than its literal sense, namely “out of the ordinary”. It means, as identified for example in Hoddinnott at [52], that the actual or potential expiry of a limitation defence is a factor of considerable importance. The factors in favour of an extension of time will have to be, either separately or cumulatively, out of the ordinary. Only in this way can the phrase “exceptional circumstances” be reconciled with the primary guidance in Hashtroodi (at [18]) and [22]) that the discretion under CPR 7.6(2) is to be exercised in accordance with the overriding objective and in a “calibrated” way, as emphasised in Qatar at [17(iii)]. It is neither helpful nor necessary to go further in terms of guidance, by reference to a need for “powerful good reason”, as the judge suggested, or otherwise.

[…]

65.

Finally, and self-evidently, the result of an application under CPR 7.6(2) in each case will be highly fact-specific. A comparison with the outcome on the facts of other cases is unlikely to be instructive.”