CL-2024-000694 - [2025] EWHC 1647 (Comm)

APPLICATION

The facts and principles having been stated, the substance of the application can be addressed relatively shortly.

As a preliminary matter, the Claimant submits that the present applications should be dismissed because they were not issued within the 7-day period stated in Dias J’s extension of time order. Further, it is submitted that BBB/the CCC Defendants have waived any right to challenge, citing Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203. The Claimant says informal notice was given of the WWFO on or about 20 February 2025, and of the extension application on 9 April 2025 (the day of the application) following which BBB/the CCC Defendants were immediately notified of the outcome. Dias J’s order stated in § 5 that “The Defendant/Respondent and the Non-Cause of Action/Defendants/Respondents may apply to vary or set aside this order within seven days after the date of service pursuant to CPR 23.10.” No applications were made until 29 April 2025 (BBB) and 6 May 2025 (CCC Defendants).

I do not accept those submissions. As set out in § 26, the authorities including Hoddinott itself make clear that a challenge in these circumstances should be made pursuant to CPR 11. The defendant in Hoddinott failed to make an in-time application under that rule. In the present case, however, such applications were made. There can accordingly be no question of the applications being out of time or of any estoppel.

Turning to the substance, it is clear that the time for serving the arbitration claim form was not validly extended, and that the WWFO must be set aside.

First, the Claimant did not apply to Dias J for an extension of the time for serving the claim form pursuant to CPR 7.6(3), and did not adduce evidence (as required by CPR 7.6(4)) with a view to establishing the requirements set out in that provision. Nor, at least formally speaking, has the Claimant done so even now.

Secondly, the Claimant did not meet the requirements set out in CPR 7.6(3)(b), because he did not take “all reasonable steps to comply with rule 7.5” (as modified by CPR 62.4(2)), i.e. all reasonable steps to serve the arbitration claim form before the time for serving it expired on 17 January 2025. In fact, no steps were taken to comply. No application was made for permission to serve the arbitration claim form out of the jurisdiction, and no attempt was made to serve it.

The Claimant contends that it was not reasonable to serve the claim form before its WWFO application was heard and disposed of, because that would have tipped off the respondents. Accordingly, there were no “reasonable steps” that could have been taken before 17 January 2025 to serve the claim form.

I do not accept that submission. As the cases referred to in § 32 above indicate, the reference to “all reasonable steps to comply” is to steps taken in an attempt actually to serve the claim form. The rule does not contemplate that the claimant can simply decide not to serve the claim form during the stipulated period on the ground that it would, for whatever reason, not be “reasonable” to do so. That would be inconsistent with the policy underlying the strict criteria for the grant of extensions, particularly retrospective extensions. To the contrary, the rule requires the claimant to have been “unable” to serve the claim form, despite reasonable steps: that is inconsistent with the suggestion that the rule can apply where the claimant was able to serve the claim form but chose not to.

Moreover, such an approach would mean that a claimant could issue an arbitration claim form, fail to progress its application for a freezing order promptly (perhaps on the basis that it was not regarded as particularly urgent), and then seek an extension of time for service of the claim form on the ground that it was not reasonable to serve it while the freezing order application remained pending. That would presumably need to be subject to the freezing order application having been progressed with all possible speed (whether or not regarded as inherently urgent in itself). However:-

For completeness, as to the facts, I also note the evidence of BBB’s solicitor, Mr Marsh, that BBB had been put on notice of potential legal proceedings by an email from the Claimant of 5 December 2023, and on notice of the arbitration by a letter from NBLO dated 26 January 2024; yet there was no evidence before Dias J of BBB having taken any steps in the 15 months since then to dissipate assets or conceal evidence.

Thirdly, and in any event, the Claimant did not act promptly in making the application for an extension. The claim form expired on 17 January 2025 but the extension application (under the wrong provision, as already noted) was not made until 8 April 2025, more than 2½ months later. The fact that the Claimant’s representatives appear, from the correspondence summarised earlier, not to have realised until too late that the arbitration claim form was an essential document that needed to be served during a one-month period does not turn a very late application into a prompt application. Moreover, the Claimant did not even act promptly after the FPS pointed out to his representatives on 25 March 2025 that the arbitration claim form had expired.

Fourthly, the Claimant made a material non-disclosure to Dias J when applying for the WWFO on 7 February 2025. Dias J was not told that the claim form had already expired. That fact clearly might have influenced her decision: it was fundamental, and meant that, absent an extension of the time for serving the arbitration claim form, the court had no jurisdiction to grant a WWFO.

Fifthly, the Claimant also made material non-disclosures to Dias J when applying for an extension of the time for serving the arbitration claim form. Dias J ought to have been told that the court had power to grant an extension only if the requirements of CPR 7.6(3) were made. Instead, those requirements were not drawn to her attention at all. It is no answer to say that as CPR 62.4(2) cross-refers to CPR 7.6, the judge should be taken to have been aware of the correct position.

The Claimant alternatively seeks a fresh order WWFO to ‘hold the ring’ until the remainder of the present challenges are determined, or a stay pending any appeal or the end of the time for appealing. The Claimant offers to undertake to issue a new arbitration claim form within 2 business days thereafter.

This part of the Claimant’s application was not the subject of detailed argument at the hearing before me, and I shall give the parties the opportunity to make further submissions on it if so advised. It is evident, though, that questions are likely to or may arise as to whether, despite the arbitration remaining on foot, it might be regarded as abusive for the Claimant to issue a further arbitration claim form after allowing the first one to expire; whether the Claimant has a good arguable case against BBB; whether permission would be given to serve out of the jurisdiction; whether the urgency requirement under section 44(3) of the Act is met; given that the arbitration is seated abroad, whether it would be inappropriate for the purposes of section 2(3) of the Act to grant a freezing order absent attachable BBB assets in England & Wales; and whether the non-disclosures to Dias J should result in the court refusing to grant a further WWFO. As to the last point, my provisional view is that the non-disclosures went to a fundamental matter of jurisdiction, and were accordingly serious even if negligent (as opposed to deliberate), and that that may be a strong factor against the grant of any further injunction even if the other requirements could be shown to be met.