Mr Christopher Loxton (instructed by Fieldfisher LLP) for the Claimant
Master Thornett:
This is the second reserved judgment in the Defendant’s14 February 2023 Application that contests jurisdiction and other procedural points. I decided several of the latter in my reserved judgment dated 10 January 2024. This decision concerns a specific issue within the Application I directed to be heard on 11 January 2024: whether the court should have extended time for service of the Claim Form by its Order sealed 3 August 2021. The question focuses upon the more common exercise of discretion on an extension application and is separate to the continuing challenge whether the claim falls within the jurisdiction of England and Wales. The Defendant reviews the grant of the extension as of right because the Order was made without notice to the Defendant.
The Claim Form was issued on 10 February 2021 and concerned a claim for service out of the jurisdiction. For the reasons set out in my judgment dated 10 January 2024, the Claim Form needed to be served by 10 August 2021.
The Claimant applied on 15 July 2021 to extend time for service pursuant to CPR 6.36. The N244 sought a decision without a hearing and without notice to the Defendant.
The Application was supported by a forty-three paragraph Witness Statement sworn on 14 July 2021 by the Claimant’s legal representative, Mr Keith Barrett. The statement confirmed it was an application to extend under CPR r.6.36 and provided a factual summary of the Claimant’s accident on 12 February 2018. The statement sought to explain and justify the Claimant’s contention that the claim fell within this jurisdiction, having regard to the criteria at CPR 6.37. These particular submissions are subject to argument in the remaining part of the Defendant’s Application as still to be listed.
In terms of the explanation and justification for the extension, Mr Barrett at Paragraph 42 explained that the Claim Form had to be served by 10 August 2021 and that:
“I have been in correspondence with the Defendant’s Attorneys for some time now. I have asked them to a) appoint a solicitor to accept service of court proceedings in England and b) to confirm they are instructed to accept service of proceedings. At the time of making this statement the Attorneys continue to await instructions. Unfortunately, I cannot wait any longer and I am now instructed to serve out of the jurisdiction. Given the current conditions the RCJ Foreign Process section are working under (their e-mail dated 14.07.2021 [attached at Exhibit KB1] suggests a minimum period of 12 months for service to be effected in South Africa) and the fact that we are in the middle of a Pandemic, I seek a further 18 months to ensure the court proceedings are served on the Defendant”.
The annexed e-mail from the RCJ Foreign Process section is also dated 14 July 2021 and appears to “cut and paste” the RCJ Section’s standard service information about service of documents in South Africa. That stated indeed that “Length of time for service” is a “Minimum of 1 year”.
On 29 July 2021, I granted an extension to 29 January 2023; the Order was sealed on 3 August 2021. The Defendant was served by the Sheriff of the Western Cape on 24 August 2022 and therefore, with the benefit of hindsight, it is clear that an extension of time had been required.
Extrapolating now irrelevant points to the extension challenge because they have already been decided, at the hearing on 11 January 2024 Miss Crowther KC relied upon the submission that the July 2021 Application had seen material non-disclosure to the court. Relevant material and facts material had not been but should have been presented. I was referred to Re OJSC Yugraneft v Sibir Energy PLC [2008] EQHC 2614 (Ch). Although a case concerning an application to dismiss the appointment of a liquidator, the Defendant submitted that the general review of authorities from Paragraph 67 onwards are relevant. In particular, the duty of full and fair disclosure, such that all facts which reasonably could or would be taken into account by the judge in deciding to grant the application are disclosed. Further, at Paragraph 102, principles going to the consequences of “culpable non disclosure”. In summary, that the general rule that once “culpable non disclosure” is established, the court on review should discharge the without notice Order; any jurisdiction to continue or re-grant should be exercised sparingly.
Continue reading this Judgment here.
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