QB-2022-002353 - [2025] EWHC 1836 (KB)

As I have found, I consider that there was a failure to comply with the duty to make proper disclosure and a fair presentation in relation to the limitation position in relation to (i) the application to serve out of the jurisdiction, (ii) at least the First, Second and Third Extension Applications. There was what appears to have been a clear misrepresentation in relation to negotiations between the parties in the context of the Second Extension Application. There was a failure properly to disclose the obvious objections to the claims under the Fatal Accidents Act and at least part of the claim under the Law Reform (Miscellaneous Provisions) Act. There was a failure to make a fair presentation in relation to whether England was the appropriate forum.

Of these four matters I regard the first two as being the most significant; taken together the four matters represent serious failures to comply with the obligations of a party making without notice applications. At least the first two must have been deliberate, even if not intended to mislead the court. There has been no proper explanation, or apology, for how they occurred. As indicated in paragraph 7(x) of Tugushev v Orlov, the court’s starting point will be immediate discharge, without renewal. The court has, nevertheless, a discretion to refuse to set aside The Relevant Orders, which is to be exercised in furtherance of the interests of justice. In the present case, I do not consider that that discretion should be exercised. The matters not disclosed or misrepresented were important to the issues facing the court on each of the relevant applications; there is a need to encourage proper compliance with parties’ obligation to make full and frank disclosure; and the failures to comply with that obligation were culpable and have not been explained. I have considered the injustice to the Claimant which may be said to flow from the setting aside of The Relevant Orders. Given that there is an apparently strong argument that the Claimant’s claim is time-barred, the extent of any injustice is in doubt. In any event, I do not consider that any injustice outweighs the factors militating in favour of the setting aside of The Relevant Orders. Thus I will set aside the orders giving permission to serve out, and the First, Second and Third Extension Orders. It follows that there was no service of the Claim Form within the period of its validity.

I would also set aside the First and Second Extension Orders on the basis that it was not, and has not been, shown that there was any good reason for the failure to serve the Claim Form within the unextended periods. While it is argued by the Claimant that this gives rise to a windfall to the Defendant, who is not required to answer for the Claimant’s claim, founded as it is on a truly appalling incident, this is something which is common in applications of this sort, as pointed out in American Leisure Group v Garrard. If the Claimant cannot now pursue his claims because they are time-barred, the responsibility for that does not rest with the Defendant.

For those reasons I accede to the Defendant’s Set Aside Application, and will declare that the court has no jurisdiction and will not exercise jurisdiction over the Claimant’s claim.