SERVICE OF THE CLAIM FORM: WHEN THE DEFENDANT NEEDS AN EXTENSION OF TIME TO TAKE POINTS AS TO SERVICE: PROBLEMS BORN IN THE US OF A.
In Joe Macari Servicing Ltd v Chequered Flag International Inc  EWHC 3175 (QB) Master Dagnall considered a case where the defendant required an extension of time in order to take points in relation to service of proceedings. The Master granted the defendant an extension of time but ultimately found against the defendant in relation to the substantive application. The facts of this matter were fairly unique, with manifold problems caused by Covid. However it provides a reminder to defendants that applications under CPR Part 11 must be made promptly. It is always a little awkward starting a hearing in relation to service with an application for an extension of time so that the defendant’s point can, in fact, be heard.
The claimant brought an action were service was required in the United States. The claimant sent a copy of the claim form to the defendant’s solicitors in the UK asking whether they would accept service. There was no reply. The claimant then issued an application for permission to serve in California, or elsewhere in the UK and an order extending time for service. The applications were made in early 2020 and there were problems caused in both jurisdictions by Covid. The claimants spent a considerable amount of time chasing the issue, it appeared that service did not take place in the USA until August 2020 and the claimant made a further application to extend time for service which was granted.
In November 2020 the defendant appointed solicitors and they made an application to set aside service of the claim form.
Ultimately the Master:
- Granted the defendant an extension of time (under Denton principles) so that it could take the point as to service.
- Refused the defendant’s application, holding that an extension of time to allow service had been properly granted.
THE DEFENDANT WAS OUT OF TIME IN MAKING ITS APPLICATION UNDER CPR 11
The interesting issue here was what that the defendant did not make any application within the requisite time period.
On 3 December 2020, the Claimant’s solicitors sent an email to the Defendant’s solicitors stating that the Defendant had failed to issue an application to request the court to decline jurisdiction within the time period provided for by CPR11 and therefore that the Defendant was deemed to have accepted that the court had jurisdiction and could not mount any challenge based on late service of the Claim Form – and relying on the decision in Hoddinott v Persimmon 2007 EWCA Civ 1203 (and to which I refer below). The Defendant responded by issuing an Application Notice dated and issued on 4 December 2020 (“the Defendant’s December 2020 Application” seeking for the court to extend the CPR11 time-limit, to grant relief from sanctions, and to declare that the court would decline jurisdiction.
THE CLAIMANT’S COUNTER- APPLICATION
The claimant made a counter-application.
On 11 December 2020, the Claimant’s solicitors issued a protective Application Notice (“the Claimant’s December 2020 Application”) seeking an order that the Court treat one or more of the various 2020 deliveries (on 30 June and in late October and early November), but not the earlier 2019 delivery, of the Claim Form to the Defendant as being good service under CPR6.15.
THE DEFENDANT’S APPLICATION FOR AN EXTENSION OF TIME
Although the defendant’s application under CPR Part 11 was made late the Master, applying Denton principles, granted the defendant an extension of time.
Technically, the first application for me to consider is that of the Defendant to extend the time to apply under CPR Part 11 and relief from the sanction (which it is common-ground and I find to exist) under CPR11(5) of the Defendant having been deemed to have accepted that the court has jurisdiction to try the Claim. If this application fails, then the other applications become irrelevant.
The relevant occurrence is, in my view, serious and substantial. The Rule provides for a clear consequence, detrimental to the defendant, which is triggered by non-compliance with Rule 11(4). It is thus at least equivalent to a sanction, and all the more so as the Rule is designed to provide certainty as to whether or not there is going to be a challenge to the court’s jurisdiction. The facts that (i) the actual period of time before an application was made was very short and (ii) there was already subsisting an application (incorrectly) designed to achieve the same purpose does not, in my judgment, and contrary to Mr Bard’s submissions, affect this. In relation to the first point: the Rule is clear and intended to be certain; no suggestion was made in Hoddinott other than that the Rule and its provisions were conclusive, rather the Hoddinott decision stressed their importance; and the shortness of the period of time prior to an application was only due to the Claimant drawing the point to the Defendant’s attention; and, in any event, it is the sanction rather than the period of time after when it is imposed which is the most relevant consideration here (and see also Dirije v Bejay 2020 EWCA Civ 1400 at paragraph 56).
There was no good reason for the non-compliance. Even if the wording of the Rule could be described as technical and potentially unclear, the Hoddinott decision (and also the later Caine decision) had made quite clear how the Rule was to be construed. Whilst it is clear that the error was “innocent” (there being no suggestion of the Defendant seeking to gain an advantage by not applying under CPR11 which would both have been in its interest and, if known, the obvious course to have taken), there is no good reason for it.
i) The burden is on the Defendant, as applicant, to satisfy me as to why relief should be granted, notwithstanding the deeming provision of CPR11(5), and this should not be done too readily
ii) I bear in mind my conclusions on the first two stages, neither of which is helpful to the Defendant
iii) I also bear in mind that CPR11(5) is designed to enable and ensure certainty, and therefore that there is a strong policy in favour of enforcing it. That ties in with CPR3.9(b) (as well as CPR1.1(2)(f)) as to the importance of enforcing compliance with Rules, and which matter is to have a “top seat at the table” of consideration of whether or not to grant relief but which is not conclusive of itself
iv) CPR11(5) is also designed to assist the orderly progress and process of the litigation as time-limiting when points can be taken as to jurisdiction, and where the importance of, and the effect of the relevant contravention on, such progress and process is made another “top seat at the table” matter by CPR3.9(a) but again which is not conclusive of itself
v) I note that in Caine, a case with similarities to the present but where the “intend to contest jurisdiction” box on the Acknowledgement of Service had not been ticked (thus rendering the case weaker as that was a further potentially important non-compliance with the Rules), Master Yoxall was prepared to grant relief and it was held that doing so was within his discretion. However, that case is only an example of what a Master might do, the Judge did not hold that the Master had no choice but to do it
vi) I do, however, further note that in Caine the Judge held that, in circumstances of the existing (there as here) application to set aside the order granting an extension of time for service, there was clearly no intention to actually waive an ability to contest jurisdiction and thus that the CPR11(5) is being used (as a deeming provision) to operate in a very technical way (although that is, of course, precisely what it does) and thus the claimant’s reliance upon it is to some extent (although understandably) opportunistic
vii) I bear in mind that the application was made very speedily, albeit only once the Claimant (who could have delayed) had notified the Defendant of its problem with CPR11(5) and Hoddinott
viii) I also bear in mind that the Claimant would contend that the Defendant is seeking to take a very technical approach, and advantage of COVID problems, against the Claimant in relation to the timing of service of the Claim Form and that it might be said that the Defendant should therefore be held itself to technicalities (here the operation of CPR11(5)). That is, on the surface, an attractive argument, but, I think, ignores the strength of the statutory policies of limitation in general and time for service of claim forms being limited in particular. These are not mere matters of technicality but specific rights given to persons in the position of the Defendant (and whether or not they are actually wrongdoers in law)
ix) The Claimant has also criticised the Defendant for apparently conceding and then taking particular points in relation to the other applications. Even were that right, I do not see that such matters particularly impact upon this question
x) I have also borne in mind that in Hoddinott this “simple” solution of seeking and obtaining relief from sanctions was not even suggested by the Court of Appeal as being a possibility. However, I do not know why that was (and the relevant extension in time order would have survived in that case in any event, so the matter was somewhat otiose) and in Caine it was held to be an appropriate course.
Although I have borne in mind all the points above and the various points made by Mr Webster, it seems to me that I should grant the extension of time and relief from sanctions sought by the Defendant. The situation here is that it was absolutely obvious from the Defendant’s initial application, and the Defendant’s Acknowledgement of Service, and the Claimant could have been in no doubt, as to what the Defendant was seeking to do i.e. set aside the August Order and use that to say that service had not taken place in time and that the litigation should therefore be terminated. The point was properly taken but is extremely technical and all that its taking has done has been to result in the need for a further application which has been combined into the applications before me with no disruption to the court’s timetable or the proceedings apart from the need to deal with it as a matter of law. There has been no real disruption to the progress or the process of the litigation, and Caine makes clear that it can be perfectly proper for relief to be granted in this particular type of situation. While I think that I can bear this in mind in favour of the Claimant with regard to other discretionary (but not jurisdictional) matters, albeit only to a distinctly limited extent, and it will be relevant as to costs in any event, I do regard the Defendant as having discharged the relevant burden, and that the justice of the case in the all the circumstances requires me to, and I will, extend the time for making a CPR11(4) application and grant relief from sanctions.
THE DEFENDANT’S APPLICATION TO SET ASIDE THE ORDER EXTENDING TIME
The Master then considered the defendant’s application to set aside the order extending time.
The next matter is as to whether I should accede to the Defendant’s Application to set aside the August Order as, if I do not, service will have been properly effected within time both by the events of (i) in June to August 2020 (a) Mr Mitrovich passing the documents to Mr Jaffe and (b) the documents being delivered to Mr Mitrovich at the California Address and then being posted to that address And also separately (ii) by the delivery by process server and post in October/early November 2020.
As I have said above, there are two jurisdictional requirements before any discretion arises, namely that the claimant “has taken all reasonable steps to comply with [CPR7.5]” and that the application for the August Order was made promptly. Although Mr Webster contended that the Claimant appeared only to be going to challenge the second requirement, Mr Bard chose to challenge both.
The first requirement “all reasonable steps”
i) The wording is all reasonable steps
ii) It should have been clear to the Claimant that COVID could well be giving rise to problems in serving in California within the relevant time period; and that the potential for this could have been somewhat clarified by an internet search as to relevant lock-downs and restrictions
iii) The Claimant could (and should) have instructed its own USA process servers separate from ABC Legal. Even if such an instruction had been ineffective to effect service, it would still have been a “reasonable step” and the taking of which is a jurisdictional requirement
iv) The Municipio decision makes clear that lawyers should have been adjusting their practices during COVID to seek to continue to comply with the CPR
v) There is a good reason to depart from the August Order sufficient to satisfy the approach taken in R(Kuznetsov).
i) It is “all reasonable steps to comply with [CPR7.5 and the February Order]” not “all reasonable steps” generally
ii) Any delay over the Christmas 2019 period could be explained by the guiding mind (Mr Macari) of the Claimant having been seriously unwell at that point as stated in unchallenged evidence
iii) The Claimant reasonably expected that the requested and paid for “Expedited Service” would have taken place within 7 business days from when FPS posted the documents on 11 March 2020 and the Claimant did all it possibly could to ascertain what had happened
iv) It would have been unreasonable and pointless to try to instruct alternative US process servers as (a) they would have been affected by USA lock-downs (b) there would have been no reason to suppose that they would have done any better than ABC especially where the Californian Address would have been expected to have been closed and (c) there was no reason to suppose that ABC had failed to effect service.
i) The test is one of “all reasonable steps” and while it is “all” it is also only “reasonable steps” and not all those steps which might have been possible or practical
ii) The relevant period of time during which to take such steps is the CPR7.5(3) 6 months period as it may have been extended (or truncated) by order (here the February Order)
iii) A Claimant does not have to proceed with particular expedition but if a Claimant does not do so and puts “all their eggs in one basket”, and in particular if they do that at a late point and where they are seeking to serve abroad in a country known for its difficulties with service, but also where they risk the arising of an “unexpected problem” which then does arise they may find that they have not taken all reasonable steps
iv) It can well be reasonable to select a particular method by which to attempt service, and then to seek to implement it, but in various circumstances (see the preceding paragraph) that may not be sufficient to satisfy the “all reasonable steps” requirement. I agree with the Deputy Master’s judgment in Intelsat with regard to this. I do not see that the “all reasonable steps” requirement can require a claimant (at least where there is no reason to believe that a particular method will be ineffective) to start off by seeking to serve in every way which might be reasonably possible but the claimant should leave sufficient time for it to be (ordinarily) seen whether the chosen reasonable method will have failed and for another (but only if such is available) reasonable method to be sought to be implemented.
i) I do not think that any real complaint should be made of the time taken before the obtaining of the February Order, the obtaining of which was a necessary stage of seeking to serve this defendant. I think that because of each and all of (a) it being reasonable to ask the defendant (which unhelpfully did not respond) whether a method of service could be agreed (b) the Christmas and New Year period (together with the unchallenged evidence of the illness of the guiding mind of the claimant albeit that I accept that the illness was not specified and the evidence did not deal whether or not others could have instructed the legal team) and, more importantly (c) the time required to prepare the Application for the February Order and (d) the February Order itself (the grant of which has not been challenged) being designed to obtain an extended period (the problem with it being that the court omitted to adjust its wording to comply with everyone’s, including Master Eastman’s, intention). Also Intelsat makes clear that initial inactivity does not itself prevent a finding of all reasonable steps having been taken
ii) Utilising the Hague Convention was essential in the absence of any contractually agreed method of service. It seems to me to have been perfectly reasonable, and indeed the obviously most appropriate course, to use the Central Authority, and thus the FPS and ABC Legal, method under the Hague Convention and including as (a) that is the primary method identified in the Convention itself (b) not to use it would be to risk falling foul of relevant provisions of US Federal or State law which might prevent the use of Article 10 and (c) it would be highly undesirable if this Court was to conclude that parties should not ordinarily be able to rely upon this method but, in order to act reasonably, should (also) be taking other steps to serve
iii) There is no evidence to suggest that there is ordinarily any particular difficulty or delay in serving documents in the USA; and quite unlike, for example, Kazakhstan (as in Intelsat) or various other jurisdictions
iv) It therefore does seem to me that the Claimant chose an apparently reasonable method of service (in fact the method was the most obvious and appropriate namely Hague Convention service through the two Central Authorities) and at a time when the Claimant (notwithstanding the growing public aware of COVID) reasonably did not think that COVID was going to cause any problem with Expedited Service resulting effective service in the very near future
v) The Claimant, by and as demonstrated by its solicitors’ various actions as set out above, (a) did all it could as expeditiously as possible to procure “Expedited Service” as soon as was possible, resolving a number of minor technical queries on the way but still leaving a situation where it appeared that service would actually be effected a fair time (10+ days) before the period allowed for service by the February Order, even were that only to be 2 months from that Order, would expire
vi) There then supervened COVID and COVID restrictions in the USA and UK. However, I do not think that the Claimant acting reasonably (and it has not been suggested or demonstrated on the evidence to the contrary) could have either supposed or ascertained that service had not been effected until after August 2020. The relevant point of contact was between ABC Legal (and the USA Central Authority) and FPS. The Claimant’s solicitors sought information prior to the initial COVID lock-downs (in either country), being on 19 March 2020, as to the expected i.e. due to the advertised Expedited Service expected 7 day period from the initial FPS posting on 11 March 2020, occurrence of service having been effected by then. It seems to me that that expectation was fully reasonable in the light of the “Expedited Service” aspect and what they had been told (by the relevant authorities) was the usual expectation. The Claimant then did absolutely everything that could be expected in terms of repeatedly chasing FPS (which had made it clear that it was for FPS to chase ABC Legal, with no suggestion being made that the Claimant could do so), both while it was closed and then once it had reopened, for information as to what had happened (and there would have been no point in inquiring of the defendant which had not chosen to respond to the initial supply to its Californian lawyers of the claim form at the end of November 2019). It seems to me to be perfectly reasonable for the Claimant’s side to have supposed that service had been validly effected within time, and as expected, but that they were having to wait for a full confirmation
vii) It is correct that COVID lock-downs and restrictions also occurred in the USA and that the fact of such (although not necessarily their details and ramifications even with the ability to conduct internet searches) was common knowledge. However, there is nothing before me to suggest that the Claimant should have known of some method of service which would have been lawful and practicable but in circumstances where ABC Legal would not have been complying with their duty to serve. At first sight, if (itself a hypothesis) ABC Legal could or would not serve, presumably due to COVID, then the same problem would affect other USA/Californian process servers. I do not have evidence before me to gainsay that as at the relevant period (March 2020 onwards) but I also do not consider that in COVID circumstances, where the FPS process had been implemented prior to any lock-down, it would have been part of reasonableness for the Claimant to engage in an investigations of such USA legal (which would include both the availability of Article 10 methods in California and Californian/USA COVID rules) and practical matters or to then guess, or have to guess, that ABC Legal had failed and would continue to fail but that some other process server was sufficiently likely to succeed to make it sufficiently worthwhile to locate and instruct them
viii) I also bear in mind that the February Order itself on its wording (although I am correcting it – see above – and so that it actually does not have that effect) appeared to require service to take place by the first part of April 2020. That was an unfortunate matter, and which was due to the Claimant’s drafting but which I do not think can be blamed on the Claimant where the drafting and accompanying evidence made clear what was intended, but had the effect that the Claimant could (and actually did) reasonably (albeit wrongly) conclude that the Claimant only had a short (but still an apparently sufficient) time in which to effect service, and that service outside that period might itself be ineffective. This is a relatively minor point, and I can see that another person might reasonably conclude that the February Order had a different effect, but, while I would come to same conclusion without it, I give it some limited weight
ix) In all those circumstances, I do not think that the Claimant could be said to have been taking a risk, whether by delay or otherwise, but rather I do think that the Claimant simply took all reasonable steps to comply with CPR7.5(3) as affected by the February Order
x) I have also borne in mind the Qatar v Phoenix decision but it seems to me that it is thoroughly distinguishable as: (i) there the claimants had failed to progress matters at an early stage but had substantially delayed before seeking to initiate a service process, and which is not the case here where the Claimant’s side had both informed themselves of and initiated the service process with proper expedition (ii) there the claimants had only sought to engage with FPS well after the initial COVID lock-down and the closure of FPS while here the Claimant had procured FPS to send the documents to the USA for service before any lock-down (and a sufficient period before then for Expedited Service to have been capable of being effected) (iii) there the claimants had waited before trying to get the defendant to accept service by agreement, but here the Claimant had immediately following issue sought such agreement but with the defendant not supplying any response (iv) there the claimants had not explained their inactivity, but here the Claimant has done so fully and where the activity was very considerable, reasonable and explicable (v) although, as stated in Qatar, the pandemic was present in the general public consciousness by early March 2020, the Claimant was doing all it could to have service effected before any relevant lock-downs were announced and could reasonably conclude that it was likely to have succeeded
xi) I add that I have borne in mind: (a) the Municipio decision, but which seems both more directed to compliance with the rules regarding work to be done by solicitors under the usual case management processes and somewhat balanced against by the Stanley decision (b) the R(Kuznetsov) decision which requires me to pay proper respect to the fact of the August Order itself, and the decision of the Master to make that decision on the papers, but where I would have come to the same decision in any event without carrying out that operation.
DID THE CLAIMANT ACT PROMPTLY?
The Master concluded that, in the circumstances of this case, the claimant acted promptly.
The second requirement “promptly”
i) The Application for the August Order was made on 18 August 2020 being some 15 weeks after time had expired under CPR7.5(3) even assuming that the February Order had not truncated that 6 month time period, and which was over 3 months after the six months from the issue of the Claim Form
ii) The Claimant was wrong to just sit and wait and should have made a protective application in case ABC Legal had not effected service
iii) The Defendant was thus left technically (there is no suggestion that it gave any actual consideration as to this) in limbo in terms of not knowing (or being able to know) whether or not time had been extended
iv) The Claimant could have inferred from the absence of an Acknowledgment of Service that the Claim Form had not been served, at least after about 3 weeks from expiry of the 6 month time period (and as was suggested in Chare).
i) Promptness needs to be considered in all the circumstances
ii) The Claimant did not know, and was doing its very best to find out from the Court, whether or not service had occurred within time
iii) While a protective application might have been technically possible, the Court (and the overriding objective) does not encourage potential waste of resource on what might be futile and unnecessary exercises.
i) The test is one of “promptly” and which has a very real meaning of “alacrity” or “reasonable celerity” or “substantial degree of urgency” which suggests a need for speed of some sort, but which also has to be considered in the light of the particular individual circumstances
ii) It seems to me (and was not really suggested otherwise by Mr Bard) that the key period is that following the 6 months from issue of the Claim Form as “promptly” must be following the expiry of the CPR7.5(3) period. On the other hand, as “promptly” is conditioned by the relevant circumstances, those will include the circumstances which have gone before.
i) It is the circumstances of the particular case which have to be considered in order to see whether the “promptly” requirement has been met
ii) An application can only be made under CPR7.6(3) where the claimant has been unable to serve and hence where the claimant has not served the claim form within the CPR7.5(3) period – see the concluding words of CPR7.6(3) “but has been unable to do so”. Under CPR7.5(4)(a) the application must be supported by evidence, and thus, on the strict wording of the rule, the evidence must demonstrate (and contain a statement of truth of the belief of the claimant to the effect) that service has not taken place
iii) Thus while it is common-ground that a protective “in case of non-service” application can be made under CPR7.6(3) that, even if legitimate, is not very consistent with the words of the rule. It is also at first sight contrary to the overriding objective as it involves a potential waste of both cost and of court resource (cf. CPR1.1(2)(e)). At first sight, when service may well actually have taken place within time, it would seem desirable to act urgently to seek to clarify that position as part of the circumstances against which “promptly” in terms of eventually making the application has to be viewed
iv) I have borne in mind Mr Bard’s submission that it should be inferred that counsel advised the making of the Application on 28 July 2020, and he then points to the lapse of time before 18 August 2020 and the actual making of the Application. However, the inference is a dangerous one to draw (counsel may well have advised a further chaser to FPS and the posting to the USA as a first stage), but, in any event, the Application and supporting evidence required some real drafting in what were COVID lock-down times and I do not see the intervening period of being of any substantial length in context (and it is nothing like the 10 weeks in Drury, and Deputy Master Bartlett was (obiter) prepared to hold that 4 weeks (although there from the expiry of the six months) was prompt in Intelsat)
v) In the particular circumstances of this case, in my view, and in the light of my consideration of the previous requirement above: (a) the Claimant was in a position where the Claimant could reasonably consider that service probably had been effected in time (b) the Claimant was reasonably doing everything which the Claimant could to seeking to clarify the position with and through FPS (including both by asking FPS to search through its post and by asking FPS to send chasers to ABC Legal to ask what was the position), and where FPS was not seeking to dissuade the Claimant but rather repeatedly holding out hope to the Claimant that the position would be clarified in the relatively short future, and the answer might, for example, be sitting in the pile of unopened post
vi) Unlike in Chare: (a) FPS had not mentioned to the Claimant any suggestion of drawing an inference of non-service from the absence of an Acknowledgment of Service (b) there were at least two reasonable possible explanations for the absence of an Acknowledgment of Service being (i) that the Defendant had been served and not sent one to the court due to the effects of COVID and COVID lockdowns in the USA and (b) an Acknowledgment of Service had been sent but was also in the FPS pile of unopened post. Thus I do not think that that argument and matter has particular weight
vii) It is correct that the Claim was issued at the end of the limitation period. However, this appears to have been following at least some correspondence, and possibly negotiations, and I cannot determine whether the Claimant can really be said to have delayed. In any event, “promptly” has to be considered primarily with regard to the period following expiry of the CPR7.6(3) time, and least with regard to the period prior to the issue of the Claim Form
viii) Again I have borne Qatar v Phoenix in mind but it seems to me to be generally distinguishable for the reasons given above, and including that: (a) there was no similar initial delay as in that case (b) the Claimant had initiated, and reasonably thought it had implemented, Expedited Service prior to any lock-down (c) the pandemic (in terms of US regulations) supervened after the documents had been sent to the USA (d) the Claimant reacted appropriately to the ensuing absence of communication by continually chasing FPS and being (in its legal team’s own mind, thinking reasonably) encouraged by FPS’s responses both as to there being a pile of unopened post and continued chasers of ABC Legal
ix) It is correct that the Defendant was, as a result, in a state of theoretical uncertainty as to what was happening and as to whether the Claim Form could no longer be properly served. However, that is more relevant to discretion than this jurisdictional requirement, and in the unique COVID situation, and where FPS had been closed and had not worked through its paperwork, it has little practical reality as to how the Defendant could have sensibly reached a final conclusion and which there is no evidence that the Defendant sought to investigate or reach
x) FPS at no point prior to the making of the Application for the August Order said that service by ABC Legal had not taken place. In the light of that and the matters above, it seems to me both understandable and reasonable for the Claimant to have waited as long as it did, or at least to a time not long prior to the making of that Application, before concluding that it was appropriate to make a protective application, albeit that there is a fair argument that it would have been reasonable to continue to wait for something clear or determinative from FPS.
xi) In those circumstances, it seems to me that the Claimant did act with (at least) alacrity or reasonable celerity once it seemed to be becoming more (although only more) clear that the provision of a determinative response as to what had (or had not) happened was simply speculative as to when (and if) it would occur. This situation was unique but it seems to me that the Claimant did act (at least) promptly in all the circumstances
xii) I add again that I have borne in mind: (a) the Municipio decision, but which seems both more directed to compliance with the rules regarding work to be done by solicitors under the usual case management processes and somewhat balanced against by the Stanley decision (b) the R(Kuznetsov) decision which requires me to pay proper respect to the fact of the August Order itself, and the decision of the Master to make that decision on the papers, but where I would have come to the same decision in any event without carrying out that operation.
THE EXERCISE OF THE COURT’S DISCRETION
The Master then concluded that it was appropriate to exercise their discretion in favour of the claimant.
i) The various matters which I have recorded that he has submitted above
ii) The fact that paragraph 2.7 of CPR 23 provides that “Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it” and he submits that this was the case (as least as far as desirability was concerned) at the expiry of the initial six months (12 May 2020) but if not then at least by and at the conference with counsel on 28 July 2020
iii) There being a heavy burden to justify what is, in essence, a further extension of the limitation period; and which burden is reflected in the case-law in relation to “in time” CPR7.6(2) applications.
i) The fact that (in context) all reasonable steps were taken and that the application was made promptly would tend to suggest (and which is supported to a limited degree by Qatar) that justice (including Article 6 rights to have claims determined) would favour the grant of the extension. This is notwithstanding that I agree with Mr Bard that the effect and relevance of the law of limitation is that the regime is supposed to be strict and that there is a substantial burden on the Claimant to justify the grant of extension notwithstanding that the Rule 7.6(3) itself does contemplate that extensions will be granted in appropriate circumstances
ii) The Claimant did seek to have the Defendant agree a method of service but received no response (and no reasons for such have been provided). The Claimant thereafter sought to take the, in my judgment, appropriate and prescribed course of obtaining the relevant permission and an appropriate extension and implementing the Hague Convention process on an Expedited Service basis
iii) The unique circumstances of COVID and its consequential effects on ABC Legal and FPS and their activities, and their ability to learn of and communicate what had happened, were a truly supervening and unpredictable set of events which, in my judgment, were the cause of the problem here where the Claimant was left in a position, through no fault of its own, of “guessing” as to what might (or might not) be the appropriate course
iv) The making of protective applications is an unusual course, and not one which the court would necessarily wish to encourage as they are potentially inconsistent with the overriding objective (and, in this case, the actual wording of CPR7.6(3) itself) for the reasons given above. That is not to say that they are inappropriate, or would be refused, but I do not find it unreasonable for the Claimant in these circumstances not to have made one
v) Paragraph 2.7 of CPR23 is itself guidance and does not lay down any absolute rule. However, the application would only have been “desirable” as a protective application, as to which see my preceding paragraph, and I do not think that the desirability for the making of a protective application was so apparent as to see the Claimant has having significantly delayed. This is particularly true in relation to the period from 12 May 2020 when it was highly unclear as to whether service had not been effected, and the Claimant could reasonably take the view that it probably had been (with a resultant communication simply lying in FPS’s pile of unopened post), but also true in relation to the, in my judgment, short period from 28 July 2020
vi) I again take the view that the Claimant had no real reason to suppose (and I do not find) that instructing its own US attorneys direct would produce (or have produced) any better outcome than waiting for ABC Legal to have done its best
vii) I also bear in mind, but give limited weight to (a) the R(Kuznetsov) decision which requires me to pay proper respect to the fact of the August Order itself, and the decision of the Master to make that decision on the papers, and (b) the fact that I have granted relief from sanctions to the Defendant to make its application to contest jurisdiction; but where I would have come to the same decision in any event without either matter being the case.
For all these reasons I am going to dismiss the Defendant’s Application to set aside the August Order. Although I have also found that service occurred in the June-August 2020 period, as it is common-ground that service was properly effected on any basis in November 2020, this means that service was effected within time and so I am going to dismiss the Defendant’s Application to contest jurisdiction.