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

PRINCIPLES

An application to set aside service of an expired claim form has to be made as a jurisdictional challenge under CPR 11(1)(b): see Joe Macari v Chequered Flag [2021] EWHC 3175 (QB):-

“[61] However, the CPR scheme also provides for its own method as to how a defendant who wishes to assert that a Claim Form has been served out of time should seek to prevent the court proceeding with the Claim, being under CPR 11.”

See also Hoddinott v Persimmon [2007] EWCA Civ 1203:-

“[22] In our judgment, CPR r11 is engaged in the present context. The definition of jurisdiction is not exhaustive. The word jurisdiction is used in two divergent senses in the Civil Procedure Rules. One meaning is territorial jurisdiction. This is the sense in which the word is used in the definition in CPR r2.3 and in the provisions which govern service of the claim form out of the jurisdiction: see CPR r 6.20 et seq. But in CPR r 11(1), the word does not denote territorial jurisdiction. Here, it is a reference to the court’s power or authority to try a claim. There may be a number of reasons why it is said that a court has no jurisdiction to try a claim (CPR r 11(1)(a)) or that the court should not exercise its jurisdiction to try a claim: CPR r 11(1)(b) …It is no answer to say that service of a claim form out of time does not of itself deprive the court of its jurisdiction, and that it is no more than a breach of a rule of procedure, namely CPR r 7.5(2). It is the breach of this rule which provides the basis for the argument by the defendant that the court should not exercise its jurisdiction to try the claim…”

In the present case, BBB filed an acknowledgement of service contesting jurisdiction and brought this application pursuant to CPR 11(5).

The court approaches the question of jurisdiction afresh by considering whether CPR 7.6(3) has been satisfied: see DDM v Al-Zabra [2018] EWHC 346 at §62:-

“The nature of a hearing to set aside an extension order and an appeal from a decision made at such a hearing were considered in Hashtroodi v Hancock [2004] EWCA Civ 652, §33): “It is common ground that in the events which have occurred here, the appeal to this court is a rehearing, rather than a review of the decision of [the deputy master who considered the application to set aside the extension order of the Master]. This is because … an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing of the issue, and not a review of the decision that it is sought to set aside; but, in the present case, the deputy master conducted the application as if it were a review of the decision of [the Master]…””

The general rule under r.7.5(2) is that “a claim form must be served within four months after the date of issue.” However, a shorter period applies to arbitration claims, pursuant to CPR 62.4(2): “an arbitration claim form must be served within one month from the date of issue”.

Extensions of the time for serving a claim form are dealt with in CPR 7.6:-

“Extension of time for serving a claim form

7.6

(1)

The claimant may apply for an order extending the period for compliance with rule 7.5.

(2)

The general rule is that an application to extend the time for compliance with rule 7.5 must be made—

(a)

within the period specified by rule 7.5; or

(b)

where an order has been made under this rule, within the period for service specified by that order.

(3)

If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if—

(a)

the court has failed to serve the claim form; or

(b)

the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and

(c)

in either case, the claimant has acted promptly in making the application.

(4)

An application for an order extending the time for compliance with rule 7.5—

(a)

must be supported by evidence; and

(b)

may be made without notice.”

The court retains a discretion to refuse to grant an extension even if the requirements are satisfied.

These are jurisdictional requirements, as the words “only if” indicate: the court has no power to extend the time when a claimant fails to show that they are satisfied (Vinos v Marks & Spencer [2001] 3 All ER 784 (CA) §20). That being so, the court cannot have an inherent jurisdiction to extend the time for serving a claim form without regard to the requirements set out in CPR 7.6.

In Lacey v Palmer Marine Services Ltd [2019] EWHC 112 (Admlty) it was made clear that if a claimant had failed to serve the claim form in time, an application under CPR r.7.6(3) was the only way to remedy the situation, and an application under CPR r.6.16 to dispense with service could not be used to circumvent this. The judge in that case quoted the statement of Neuberger LJ in Kuenyehia v International Hospitals Group Ltd [2006] EWCA Civ 21 that:

“… the time limits in the CPR, especially with regard to service of the claim form where the limitation period may have expired, are to be strictly observed, and extensions and other dispensations are to be sparingly accorded, especially when applied for after the time has expired. While there may be exceptional cases, we consider that prejudice is only relevant in this sort of case to assist a defendant, where the court would otherwise think it right to dispense with service. In other words, prejudice to the defendant is a reason for not dispensing with service, but the absence of prejudice cannot usually, if ever, be a reason for dispensing with service” ([33])

In Nanglegan v Royal Free Hampstead NHS Trust [2001] EWCA Civ 127, Thorpe LJ stated that CPR 7.6(3)(b) “is clearly intended to cover cases where the person endeavouring to effect service has taken all reasonable steps, but his reasonable efforts have been frustrated by some near insuperable difficulty or obstacle”. The Court of Appeal in Kaur v CTP Coil Limited [2001] C.P. Rep 34, §13 clarified that “[r]ule 7.6(3)(b) is concerned with the actual process of service, and as to whether actual service has been reasonably attempted, not the preparation of documents”, which was followed in Dao v Falmouth [2020] EWHC 609 (Ch) §37. Consistently with those statements, Lord Sumption, writing for the majority of the Supreme Court in Barton v Wright Hassall LLP [2018] UKSC 12, said:

“I note in passing that if Mr Barton had made no attempt whatever to serve the claim form, but simply allowed it to expire, an application to extend its life under CPR r 7.6(3) would have failed because it could not have been said that he had taken all reasonable steps to comply with rule 7.5 but has been unable to do so” (§ 21).

(This may be contrasted with the position under CPR 7.6(3)(a), concerning service by the court, where the position is as set out in Cranfield v Bridgegrove Ltd [2003] EWCA Civ 656.)

The court should consider only steps taken within the relevant period, not subsequent efforts (Carnegie v Drury [2007] EWCA Civ 497 §36; Dao v Falmouth §28).

The Court of Appeal in Aktas v Adepta [2011] QB 894 noted the strictness of the requirements in CPR 7.6(3), and said at § 71:

“… The negligence of a claimant’s solicitor is no excuse. It is not a good reason for an extension, even where the extension is applied for in time. It is a bad reason, a reason for declining an extension. The strictness derives from the wording of CPR r 7.6(3) with its expressly limited reasons (“only if”) for allowing an extension out of time, but also from the philosophy that time limits are to be strictly enforced. …”

The claimant has the evidential burden of showing that all reasonable steps were taken during the relevant period, and, for example, unexplained delays in locating a defendant will count against extension applications (MB Garden Buildings Ltd v Mark Burton Construction Ltd [2014] EWHC 431, §§ 57-59).

In CPR 7.6(3)(c), “promptly” means with “all reasonable celerity in the circumstances” (Khan v Edgbaston [2007] EWHC 2444, §§19-29). For instance, in Joe Macari a 4-week delay in applying was “close to the borderline”, and an extension was justified only in the case's unique circumstances (§§52 and 120-121); and in Chare v Fairclough [2003] EWHC 180, the court held that 10 weeks was not prompt and would require exceptional circumstances (§30-31).

In Al-Zahra (PVT) Hospital v DDM [2019] EWCA Civ 1103, the Court of Appeal upheld Master Cook’s decision to refuse a without notice, ex parte application for an extension on the papers, and made these observations:

“…In the circumstances, I have concluded that the second order which was granted on the basis of the application notice alone, should be set aside on the basis the court was simply not provided with the required and/or sufficient information to enable it to understand why a further extension of time for service was being sought. This result seems to me to be supported by law, which I have referred to and which makes crystal clear that such applications should be properly supported by evidence which complies with the Rules. I also bear in mind the comments made by Cox J in the case of Foran v Secret Surgery [2016] EWHC 1029 (QB) to the effect that it is not good practice to submit such an application on paper and in circumstances where time limits are running out, such applications should normally be dealt with by way of an urgent hearing or on the telephone and at which the appropriateness of granting relief should be carefully considered (see paragraph 21 of her judgment)…” (§ 19)

CPR 62.4(2) states:

“Unless the court orders otherwise an arbitration claim form must be served on the defendant within 1 month from the date of issue and rules 7.5 and 7.6 are modified accordingly.”

The Claimant submits that this rule gives the court a general discretionary power to extend time for service of an arbitration claim form. No authority was cited either way on this point. I do not accept the Claimant’s submission, for two reasons. First, rule 62.4(2) states that rules 7.5 and 7.6 are “modified” rather than replaced. That indicates an intention to retain rules 7.5 and 7.6, including the distinction drawn in rule 7.6 between applications made before and after expiry of the time for serving a claim form, and the conditions placed on both types of application, subject only to the replacement of the four-month period in rule 7.5 by the one-month period in rule 62.4(2). (The reference to modifying rule 7.6, in addition to rule 7.5, is explicable by the references in rule 7.6 to “the period specified by rule 7.5”.) Secondly, given the premium placed in the rules, and the law generally, on speed and finality in relation to arbitration applications, it would be surprising if the rule-makers had intended a less strict regime for extensions of time of arbitration claim forms than for claim forms in general. If anything, one would expect the opposite.

Even if that were wrong, I would conclude that any freestanding extension power conferred by rule 62.4(2) should be construed in the light of, and applied by reference to, the criteria set out in rule 7.6.

The Claimant also submits that the one-month period in rule 62.4(2) does not apply where the arbitration claim form has to be served abroad. There is no basis for any such distinction either in the wording of the rule, or in the case law, and it would cut against the policy of speedy finality in arbitration matters. Although service overseas sometimes, but not always, takes longer, that does not justify the introduction of gloss on the rules. Delays in service can be, and often are, addressed by the making of an in-time application under rule 7.6(2).

In addition, the Claimant submits that the court – in effect meaning the court’s listing office or other staff – can impliedly extend the time for serving a claim form by dealings with the claimant of the kind which occurred in the present case regarding the listing of the WWFO application and the issue of the arbitration claim form. That submission is hopeless. The court’s staff have no power to grant any such extension: the power to extend is conferred on the court, i.e. the judges and Masters of the High Court, and only in the circumstances set out in CPR 7.6.

Further, if and to the extent that the Claimant may be suggesting that Dias J impliedly extended the time for serving the arbitration claim form by granting the WWFO, that submission too is untenable. An extension can be granted only if the court satisfied itself, on the evidence, that the requirements of rule 7.6 are met (cf MB Garden §§ 24-26). Dias J did not do so, because her attention was not drawn to the fact that the claim form had expired, nor to the requirements of rule 7.6, and there was no evidence before her that those requirements were satisfied.

Applicants for without notice relief owe a duty of utmost good faith to disclose all material facts (Memory Corporation plc v Sidhu [2000] 1 WLR 1443, 1454 F)). The test for materiality is objective, i.e. whether the fact might reasonably have affected the judge’s decision (Brink’s Mat Ltd v Elcombe [1988] 1 W.L.R. 1350, 1356–1357). The duty includes material facts not actually known to the Claimant but which he would have known if he had made such inquiries and checks as the court would reasonably have expected him to make in such a situation” (ibid. at 1357 H).