[2025] EWHC 2941 (Comm)

Fecha: 11-Nov-2025

Section 5

“…

We write with an update on progress of our submission to the FPS which has been delayed due to various additional requests by the agency (which were not mentioned in their original guidance). These points were only recently raised. To this end, we have been liaising with one of their case handlers over the course of the past month to ensure all red tape is in order so that the submission can now be accepted. This is a very time-consuming exercise, but our only option right now is to wait and contact the FPS frequently for an estimate on when the documents will be served in Brazil if at all possible.”

28.

On 2 July 2024, WFW asked the FPS for an update.

29.

On 23 July 2024, the FPS rejected Owners’ second request for service in Brazil (“the 2^nd FPS Rejection”) for reasons, which were different to the 1^st FPS Rejection.

One of the reasons was that the N224 form was not provided ‘with’ the covering letter to the FPS, i.e. together rather than with the body of other documents. Whilst providing a covering letter and an N224 form was part of the guidance, it was not stated that the two had to be physically provided together. (The N224 forms were, however, included in the submission).

ii)

Another reason was that the certificate of translation did not list various documents.

iii)

A final reason was the absence of an additional covering letter from WFW. But the guidance available to WFW only required a covering letter, which had been included as part of the submission.

30.

WFW collected the documents from the FPS on 24 July 2024 and re-submitted them on 3 September 2024. This time, the FPS accepted the documents and despatched them to the Brazilian central authority on 08 October 2024 for service.

31.

On 8 October 2024, the request for service having been accepted by the FPS, the documents were despatched to the Brazilian central authority for service.

32.

On 30 October 2024, the Brazilian central authority rejected the documents for service on the First Defendant on the basis that the form or letter rogatory was not translated into Portuguese.

33.

On 8 January 2025, the FPS informed WFW about the rejection by the Brazilian central authority. The message from the FPS was the first time that Claimants found out about the rejection.

34.

This was queried by WFW, as the request form was translated into Portuguese.

35.

On 27 February 2025, after making enquiries in Brazil, the FPS informed WFW that Brazil required ‘both the Portuguese Hague Form to be completed and for all the text – list of documents etc to be translated as well’. The FPS also explained: ‘I would like to highlight that this requirement for the Hague request form was not mentioned in any format to the Foreign Process Section prior to the documentation going out for service and hence this was not mentioned in the guidance that we initially emailed to you’.

36.

On 13 March 2025, W.E. Cox wrote to WFW saying that the Defendants had received the Second Extension Order and seeking copies of the application materials which led to the granting of the order. The same e-mail also attaches a copy of the Amended Claim Form but it is unclear whether that version of the Amended Claim Form was one already in W.E. Cox’ possession or had been received by at least one of the Defendants in Brazil. In any event, the Claimants do not submit that the Amended Claim Forms had been served on the Defendants by the time of the e-mail from W.E. Cox.

37.

After sorting out exactly what was required to satisfy the Brazilian authorities, the request for service was re-submitted by the FPS on 28 March 2025.

38.

The Defendants submit that the statutory limitation period expired on a date between 05 and 17 April 2025. The Claimants submit that it expired on a later date, namely 24 April 2025.

39.

On 22 April 2025, pursuant to the Order of Mr Justice Foxton permitting service by e-mail as an alternative method (which Cargo Interests have not sought to set-aside) the Claim Form was served on Cargo Interests. The Defendants have not separately challenged the service on them by alternative means pursuant to the Order of Mr. Justice Foxton. In other words, while service was arguably effected on the Defendants outside the period of statutory limitation, they were on any view served within the period of initial validity of a claim form issued immediately prior to the expiry of the statutory limitation period.