[2025] EWHC 2941 (Comm)

The Defendants submit that the principal cause of delay was oversight or incompetence on the part of the Claimants’ solicitors. In support of this submission, the Defendant relied in particular on the following matters:

The Defendants say that this sequence of events show two key aspects of incompetence or oversight. First, that repeated errors were made in the submissions to the FPS, which resulted in further time being spent before the submissions were reviewed and found to be inadequate. Second, there was no appropriate urgency in addressing the errors with the submissions and ensuring that a compliant submission was made with appropriate urgency especially given the timescale for service under the First Extension Order. In particular, the Defendants say that there were unnecessary delays of weeks at a time at a number of stages of the process even after it had become clear that matters were not proceeding as swiftly as they ought to have and that steps should have been taken to move matters along swiftly.

In particular, the Defendants submit, the four witness statements from Ms. Tully do not explain how the errors in the submissions were made or identify where errors identified by the FPS were not actually errors. In relation to the failure to provide translations and the failure to provide the Hague request form in soft copy, the Defendants say this was despite the clear advice provided to Mr. Farach in June 2023 and which would otherwise have been available through sources which the Claimants’ solicitors could reasonably have been expected to consult.

The Claimants in their submissions contended that there were five key periods of time to consider when assessing whether there was an unjustifiable failure by the Claimants or their solicitors to progress service of the Amended Claim Form and whether any such failure was causative of the failure to serve the Amended Claim Form before 15 November 2024.

I agree with the Claimant that it is helpful to look at each of the five periods of delay and decide whether there was good reason for the delay and if not whether that delay was causative of the need to extend the period of validity of the claim Form beyond November 2024. In looking at each period, it is necessary to consider the particular criticisms of the Claimants and their solicitors made by the Defendants.

So far as period 1 is concerned, there is no significant delay. The Claimants were justified in seeking advice from the FPS and from local lawyers before proceeding to submit documents to the FPS. Accordingly, there was good reason for the period of time which passed during period 1.

During period 2, it is possible to criticise Ince & Co. for not following up with the FPS sooner than February 2024. One would have expected Ince & Co. and then WFW to be making enquiries before February as to the progress of Claimant’s request for service in Brazil. However, I am not persuaded that this failure in fact caused any delay to the progress of the Claimants’ request. It is clear from the correspondence that the FPS was operating a system under which they dealt with enquiries as they were received. I am not persuaded that earlier enquiries would have resulted in the FPS reviewing the Claimants’ request any earlier. It is possible that the initial need for certain documents to be re-submitted would have been identified sooner but this does not mean that the FPS would have carried out their first proper review of the documents before mid-March 2024. I am therefore satisfied that there was good reason for the period of delay during period 2.

So far as period 3 is concerned, there is no good explanation for why WFW did not collect the documents from the FPS prior to 02 April 2024 and then took until 15 April 2024 to re-submit them. In this regard, there was a lack of urgency. However, it is not possible to determine what delay, if any, this caused in the renewed consideration of the documents by the FPS. So far as errors which led to the 1^st FPS Rejection are concerned, it does seem that mistakes were made by WFW with the documents submitted on behalf of the Claimants. It is less clear to what extent those errors could have been avoided given the guidance then available to WFW as to the documents required to support the Claimants’ request for service under Article 5 of the Hague Convention. I do not consider that the evidence establishes that the mistakes which were made can properly be characterised as negligent or incompetent nor do I consider that the evidence establishes any culpable lack of oversight within WFW. So far as period 3 is concerned and adopting the calibrated approach identified in Hashtroodi, I am satisfied that while explanation for the delay may not lie at the better end of good reasons, there are sufficient reasons to explain this period of delay.

So far as period 4 is concerned, the Defendants do not criticise the Claimants for the time taken to re-submit the documents supporting the Claimants’ request. They do criticise the Claimants for the fact that there were further errors with the documents submitted by the Claimants. In this regard, Mr. Richards has set out a detailed explanation in his second witness statement of the steps he would have taken to ensure that documents submitted with a request for service out in Brazil were correct. However, as he properly acknowledges in his third witness statement, the process he describes in his second witness statement was based at least in part on the availability of the checklist and spreadsheet of specific requirements referred to in paragraph 42 above which were not available to the Claimants at the time of the 2^nd FPS Rejection. In any event, it is unclear whether the errors identified by the FPS in relation to the second rejection were ones which WFW could have identified or were a consequence of oversights by the FPS. But, in any event, to the extent that WFW were responsible for the errors, I do not consider that the evidence establishes that the errors with the documents can be properly characterised as negligent or incompetent nor do I consider that the evidence establishes any culpable lack of oversight within WFW. Again so far as period 4 is concerned and adopting the calibrated approach identified in Hashtroodi, I am satisfied that while explanation for the delay may not lie at the better end of good reasons, there are sufficient reasons to explain this period of delay.

So far as period 5 is concerned, it is, of course, material that the FPS had considered the documents and were sufficiently satisfied that they met the requirements for service in Brazil under Article 5 of the Hague Convention that they sent the documents to the Brazilian central authorities for service. The evidence also shows that the reasons subsequently given by the Brazilian authorities for rejecting the documents relating to the First Defendants were not known to the FPS and I accept, therefore, could not be known to the Claimants or WFW. There is therefore a good reason to explain this period of delay.

Looking at the position overall and applying the tests laid down in Hashtroodi and Brittany Ferries, I am satisfied that the evidence establishes sufficiently good reasons to justify the extension of the period of validity of the Claim Form granted by Knowles J. in the Second Extension Order.

I am also satisfied that the granting of an extension of time for the service of the Claim Form by the Second Extension Order was in accordance with the overriding objective.