[2025] EWHC 2941 (Comm)

By PD 7A §11.2 the evidence in support of the application should state all the circumstances relied upon and a full explanation as to why the claim has not been served.

By §F.2.6 of the Commercial Court Guide, on all applications without notice it is the duty of the applicant and those representing the applicant to make full and frank disclosure of all matters relevant to the application.

Where a defendant applies to set aside an extension of time under CPR r.7.6 made without notice, the application is a re-hearing rather than a review; Hashtroodi v Hancock [2004] 1 WLR 3206 at [33].

The discretionary power must be exercised in accordance with the overriding objective; Hashtroodi at [18] and ST v BAI (SA) (trading as Brittany Ferries) (Rev 1) [2022] EWCA Civ 1037 at [62(v)].

The starting point is to identify the reason for the failure to serve within the validity period, i.e. the cause of the delay. This is part of the overriding objective of dealing with cases justly because it is not possible to deal with a case justly without knowing why a claimant has failed to serve the Claim Form within the specified time; Hashtroodi at [18].

However, a 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 for service. Accordingly, any departure from this starting point has to be justified; Brittany Ferries at [62].

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 a claimant (or its solicitors) or waiting for some other development (such as funding) may not amount to good reason; Brittany Ferries at [62] and Hashtroodi at [35]. In this respect, it is clear from Hashstroodi at [19] and [20] that a court has to apply a calibrated approach in assessing the strength of a claimant’s reasons for why a claim form was not served within the period of its initial validity and the weaker the reason the more likely the court will be to refuse the extension of time.

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; Brittany Ferries at [62].

If a limitation defence will or may be prejudiced by the granting of an extension of time, a claimant should have to show at the very least that they have taken reasonable steps (but not all reasonable steps) to serve within time; Brittany Ferries at [62].

The fact that a defendant has had informal notice of the claim is a relevant factor to be considered; Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806 at [58].