Cavadore Limited & Anor v Mohammed Jawa & Anor [2025] EWHC 2222 (Ch)

[2025] EWHC 2222 (Ch)Case No BL-2021-000228IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 29/08/2025
Before
MASTER MCQUAIL
Between
(1) CAVADORE LIMITEDClaimants(2) MAGENTA BLACK TRADING LIMITEDClaimant(1) MOHAMMED JAWADefendants(2) MODERN FOOD COMPANY LIMITEDDefendant
Adrian De Froment (instructed by DMH Stallard) for ClaimantsAndrew Blake (instructed by LK Law) for Second Defendant for The First Defendant did not appear and was not representedHearing Hearing date: 19 May 2025
Approved JudgmentThis judgment was handed down remotely at 2pm on 29 August 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MASTER MCQUAIL

The Applications

[1]The second defendant applied on 3 January 2025 pursuant to CPR Part 11 for an order setting aside:(i) three without notice orders extending time for service of the claim form: (a) the order of Deputy Master Bowles dated 17 August 2022 (the First Extension Order); (b) the order dated 1 December 2023 (the Second Extension Order); and (c) the order dated 19 June 2024 (the Third Extension Order); (together the Extension Orders); and(ii) setting aside service of the Claim Form (the Set Aside Application).[2]The claimant has since issued three applications:(i) an application dated 28 February 2025 pursuant to CPR7.6(1) seeking an extension of time for service of the claim form on the defendants to 1 September 2025 (the February 2025 Extension Application);(ii) an application dated 8 April 2025 pursuant to CPR 6.15(1) or 6.16(1) seeking permission to serve by alternative means or an order that service is dispensed with together with an order pursuant to CPR 7.6((1) or 3.1(2)(a) extending time for service of the Claim Form and Particulars of Claim (the Alternative Service Application); and(iii) an application dated 6 May 2025 seeking orders about service on the first defendant.[3]Witness Statements of:(i) Caroline Phipps of LK Law LLP (LK), solicitors for the second defendant dated 3 January 2025 (Phipps 1);(ii) Patrick Murray of DMH Stallard LLP (DMH), solicitors for the claimant dated 8 April 2025 (Murray 2)(iii) Caroline Phipps dated 28 April 2025 (Phipps 2);(iv) Patrick Murray dated 6 May 2025 (Murray 3); and(v) Caroline Phipps dated 13 May 2025 (Phipps 3); have been signed in connection with the Set Aside Application.[4]In addition on 23 February 2025 Patrick Murray signed a witness statement in support of the 2025 Extension Application, (Murray 1).

The Set Aside Application

[5]I heard the Set Aside Application, the February 2025 Extension Application and the Alternative Service Application on 19 May 2025.[6]The first defendant is not a party to the Set Aside Application and did not appear at the hearing.

The Parties and the Claims

[7]The first and second claimants are companies incorporated in Cyprus. The second defendant is a company registered in Riyadh in the Kingdom of Saudi Arabia (KSA) (Commercial Registration Number 1010348413). The first defendant is Mohammed Jawa; he was, but is no longer, a director and shareholder of the second defendant.[8]The claimants’ claims arise from franchise agreements entered into between the second claimant and the defendants relating to restaurants operated under the “Nozomi” brand in KSA and elsewhere. The franchise agreements provided that the governing law was English law and that the English courts would have exclusive jurisdiction.[9]In summary the claimants say that:(i) the second claimant terminated the franchise agreements for breaches of those agreements on 13 November 2017, if they had not already been terminated by the defendants;(ii) the second defendant held certain trade marks on trust for the first claimant and acted in breach of fiduciary duty;(iii) the first defendant acted in breach of the terms of a power of attorney and in breach of fiduciary duty and diverted the trade marks to his own and/or to the second defendant’s benefit; and(iv) the defendants and a third party are parties to an unlawful means conspiracy and/or have unlawfully interfered with the claimant’s economic interests and continue so to do so.[10]The claimants seek against the defendants:(i) injunctions in relation to the trade marks;(ii) equitable compensation;(iii) an account of profits;(iv) payment under a contractual indemnity within the franchise agreements; and (vi) damages in an amount in excess of £22 million for alleged breaches of terms of the franchise agreements.[11]On 29 June 2018 the claimants brought a claim against the defendants (the First Proceedings). Permission to serve out was granted on 4 July 2018. The claimants purported to serve the proceedings in KSA and went on to apply for judgment in default on 14 August 2018. Judgment was granted on 10 October 2018.[12]On 16 November 2018, LK Law (LK) agreed to accept service on behalf of the defendants after that date. The claimants refused to agree to set aside judgment. The defendants applied to set aside the judgment. In a reserved judgment dated 12 December 2019 following an inter partes hearing Deputy Master Bowles concluded that the claimants had failed properly to serve the First Proceedings under the laws of KSA. He ordered that the default judgment be set aside, and dismissed the First Proceedings.[13]As to costs:(i) Deputy Master Bowles ordered the claimants to pay the majority of the defendants’ costs and ordered an interim payment of £90,000 by 4 February 2020;(ii) the claimants did not make that payment;(iii) on 20 April 2020 the defendants served a notice of assessment and, on 13 May 2020, obtained a default costs certificate in the amount of £210,036.61;(iv) the claimants did not pay, despite attempts to enforce, including by bringing winding up proceedings in Cyprus.[14]On 17 January 2020 the claimants started a second claim (the Second Proceedings). The claimants purported to serve on LK, but were told that LK was not authorised to accept service. The Second Proceedings were never validly served.[15]On 11 February 2021 the claimants issued the present proceedings (the Present Proceedings). An application for service out and for service by alternative means was made on 10 March 2021. The application was supported by the witness statement of Timothy Ashdown dated 9 March 2021 (Ashdown 1), which referred to having been told by the FPS that service in KSA would take 12 months or more. That evidence in support did not refer directly to the unpaid costs from the first proceedings.[16]At a hearing of the application on 1 April 2021, Master Teverson asked about the costs position and was told £90,000 was outstanding. The Master required the claimants to undertake to pay £90,000 as a condition of serving the claim out. Shortly after the hearing the claimants’ counsel emailed the Master drawing attention to the fact that (unknown to him at the hearing) the £90,000 figure had been superseded by the default costs certificate in the amount of £210,036.61. At a further hearing on 27 April 2021, Master Teverson made an order permitting service out without any payment condition, apparently on the basis that the claim might otherwise be stifled (the Teverson Order).[17]Upon becoming aware of the Teverson Order, on 18 June 2021, the defendants applied to challenge jurisdiction and, amongst other things, for an order reinstating the claimants’ obligation to pay the outstanding costs as a precondition of serving the claim.[18]That application was listed to be heard by Deputy Master Arkush on 26 August 2021. With encouragement from the Deputy Master the parties agreed the substantive terms of an order but the Deputy Master ruled on costs. At [18] of his judgment, he expressed himself to be “perturbed” that the position as to outstanding costs was not fairly disclosed to Master Teverson at the 1 April 2021 hearing and at [20] stated that he hoped such conduct would not be repeated. The defendants’ costs were ordered to be paid by the claimants and were summarily assessed at £55,000.[19]The Order following that hearing was dated 20 September and sealed on 23 September 2021 (the Arkush Order). Pursuant to the Arkush Order the Teverson Order was set aside; permission to serve out in accordance with CPR6.40(3)(a) and/or (c) was granted and the time for service was extended to 1 September 2022. The claimants were required to pay previous costs liabilities totalling £236,871.64 and the assessed costs of £55,000 (together the Outstanding Costs) by 25 September 2021, failing which the claim would be struck out automatically on 9 October 2021. The proceedings were stayed until the Outstanding Costs were paid.[20]On 24 September 2021 DMH sought guidance from the FPS and were told on 27 September 2021 that the length of time for service in KSA could be 12 months or more from when documents arrive in KSA and were given guidance about the translation and assembly of documents and how they must be listed in form N224.[21]On 24 September 2021 the claimants applied to extend time for payment by two days until 27 September 2021. That was followed by a second application on 27 September 2021 for an extension until 8 October 2021. By 9 October 2021, the Outstanding Costs had still not been paid. On 23 November 2021, the claimants sought to amend their earlier application alternatively to seek relief from sanction.[22]All three applications came before Deputy Master Francis. In his judgment dated 13 December 2021 he:(i) concluded that the explanation advanced for the 24 September application was “wrong and misleading”;(ii) concluded that the 27 September application failed to correct that misleading impression;(iii) expressed his surprise that no attempt had been made to explain, and apologise for, the misleading and incomplete information provided in the two September applications;(iv) like Deputy Master Arkush, expressed himself to be “perturbed” by the manner in which the claimants had pursued the applications; but(v) concluded on balance that time to pay the Outstanding Costs should be extended until 22 December 2021.[23]Before any order was drawn up a further application was made on 21 December 2021 seeking an extension of time to pay until 14 January 2022. At an inter partes hearing on 7 January 2022, the Deputy Master made an order which extended time to pay the Outstanding Costs to 14 January 2022 and provided that the claim be struck out on 17 January 2022 without further order in the event of non-payment.[24]Deputy Master Francis also ordered the claimants to pay the defendants’ costs in respect of the various extension applications in a total sum of £48,675 (the Additional Costs) by 21 January 2022. The Outstanding Costs, but not the Additional Costs, were paid on 13 January 2022.[25]DMH commissioned translations of the service documents on 11 January 2022 and received them on 8 March 2022. On 26 April 2022 the service documents and Form N224 were sent to the FPS. They were returned as defective on 6 July 2022. DMH requested a new translation certificate, which was received on 27 July 2022. DMH sent the service documents, new certificate and revised form N224 to the FPS the same day. On 2 August 2022 the FPS wrote to DMH confirming the service documents had been dispatched and on the same day confirmed by telephone and email that it would take at least 12 months for service to take place.[26]On 16 August 2022, the claimants applied without notice for an order extending time for service of the claim form for a further fifteen-month period to 1 December 2023 (the First Extension Application). The evidence in support was the witness statement of Timothy Ashdown of DMH dated 16 August 2022 (Ashdown 4). That statement:(i) briefly summarised the history set out above, without mentioning the First Proceedings or the Second Proceedings, the Teverson Order and its setting aside or the matters that had perturbed the two Deputy Masters;(ii) drew the Court’s attention to the fact that the proceedings had been stayed pending payment of the “Previous Costs” but asserted that “the Claimants paid the “Outstanding Costs” on 13 January 2022” without clearly stating that the Additional Costs had not been paid;(iii) set out the steps taken since 11 January 2022 to effect service through the FPS;(iv) made no mention of possible limitation defences arising during the currency of the extension sought.[27]On 17 August 2022 Deputy Master Bowles made the First Extension Order on the papers extending time for service to 1 December 2023.[28]On 30 November 2023, the claimants applied for an extension to 1 July 2024 (the Second Extension Application).[29]No witness statement was filed in support of the Second Extension Application. The Claimants instead relied on Ashdown 4 and referred in the application notice to:(i) confirmation from the FPS in February 2023 that the service documents were sent to the FCDO in September 2022; and(ii) calls and emails to the FPS another eight months later in October and November 2023 which confirmed the service documents were with the KSA authorities.[30]The application was determined on the papers as requested by the claimants and I made the Second Extension Order on 1 December 2023 extending time to 1 July 2024.[31]On 19 June 2024, the Claimants applied for an extension to 1 March 2025 (the Third Extension Application).[32]No witness statement was filed in support of the Third Extension Application. The application notice:(i) referred to the claimants emailing the FPS again in June 2024 which revealed that the documents for service on the first defendant had been returned to the FPS on 26 April 2024, although the reasons were given in a note written in Arabic, which it appeared had not yet been translated; and(ii) asserted that “[t]he Claimants can do little to influence the difficulties they face serving in KSA, other than seek the indulgence of the court to extend the claim form further”, although they would consider filing an application for service by alternative means once they had a translation of the Arabic note.[33]I made the Third Extension Order on the papers extending time to 1 March 2025.[34]Murray 1 and 2 set out the sequence of events since the Arkush Order with a little more detail than had been included in the three Extension Applications. These Witness Statements did not provide an explanation for the time gap between obtaining translations of the service documents and submitting them to the FPS in early 2022 or explain why the claimants were not to blame for the errors in the paperwork as originally submitted. In addition it explained that on 23 August 2024 the claimants instructed a KSA law firm, Al-Fallaj Law (Al-Fallaj), to assist with service in KSA (in fact the letter of instruction requested that Al-Fallaj serve the defendants by a method permitted by the laws of KSA). No explanation was given of what Al-Fallaj actually did or of why it could not have been done sooner. Service on the first defendant was effected in KSA by Al-Fallaj on 18 November 2024 (and pursuant to s.1140 of the Companies Act 2006 on 11 March 2025). Unknown to the claimants at the time, service on the second defendant was effected by the KSA authorities on 26 November 2024, after Al-Fallaj had liaised with the KSA authorities. The certificate of service was only received by the claimants on 19 March 2025. Murray 2 said that “the time that the British and Saudi Authorities took to serve the Second Defendant was out of the Claimants’ control”.[35]Murray 2 also stated that the Additional Costs would be paid before the May hearing. Murray 2 apologised for the late payment of the Additional Costs and for the failure to draw the matter of those costs to the attention of the court earlier. Murray 2 sought to blame non-payment of the Additional Costs on a failure of the defendants to take enforcement steps and on the claimants being distracted by other matters.[36]The Additional Costs remained unpaid until on or around 7 May 2025. The judgment rate interest due on those costs was paid only very shortly before the May hearing.[37]Following the hearing on 7 January 2022, the next the second defendant heard about the Present Proceedings was on 26 November 2024 when documents as described in Phipps 1 (the KSA Documents) were delivered by a KSA official to its offices in KSA. The second defendant says that the KSA Documents are deficient in a number of respects However, for the purposes of the May hearing the second defendant was prepared to assume that, had the service of the KSA Documents been within the period of validity of the Claim Form, it would have been effective.[38]Phipps 1 explains that there are a number of steps that the claimants might have taken to hasten serving the claim form in KSA:(i) instructing KSA Counsel to liaise with the KSA Ministry of Justice;(ii) engaging a Government Relationship Officer in KSA to liaise with the authorities; or(iii) appointing a Saudi-qualified lawyer in KSA and issuing a Power of Attorney to enable the lawyer to act on the claimants’ behalf including by serving documents.[39]Phipps 1 also explains that, in the author’s experience, translations of service documents may be obtained within a week and possibly more quickly at greater cost.[40]The evidence in Phipps 1 about instructing an agent in KSA to assist with service was not challenged. Nor was any evidence adduced to contradict the evidence about the speed of obtaining translations.[41]It is notable that the claimants did instruct KSA counsel in connection with service of the First Proceedings. It is apparent also from the terms of the Alternative Service Application and Murray 1 that, when KSA Counsel was instructed in August 2024, they served the first defendant and liaised with the KSA Ministry of Justice and assisted with service on the second defendant.

The Law

[42]Pursuant to CPR rule 7.5, where a claim form is to be served out of the jurisdiction, it must be served within six months of the date of issue.[43]Lord Browne-Wilkinson explained in Dagnell v J.L. Freedman & Co (a firm) [1993] 1 WLR 388 at 393C that:
“The starting-point is that a defendant has a right to be sued, if at all, by means of a writ issued within the statutory period of limitation and served within the period of its initial validity.”
[44]CPR rule 7.6 provides as follows: 7.6 Extension of time for serving a claim form(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.[45]Paragraph 8 of PD 7A provides:8.1 An application under rule 7.6 (for an extension of time for serving a claim form, under rule 7.6(1)) must be made in accordance with Part 23 and supported by evidence.8.2 The evidence should state:(1) all the circumstances relied on,(2) the date of issue of the claim,(3) the expiry date of any rule 7.6 extension, and(4) a full explanation as to why the claim has not been served.[46]In ST v BAI (SA) (t/a Brittany Ferries) [2022] EWCA Civ 1037 Carr LJ mentioned at [61] a number of the leading authorities on CPR 7.6(2) including Hashtroodi v Hancock [2004] EWCA Civ 652, Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203; Cecil v Bayat [2011] EWCA Civ 135; Al-Zahra (PVT) Hospital and Others v DDM [2019] EWCA Civ 1103 and, most recently, Qatar Investment & Projects Holding Co v Phoenix Ancient Art SA [2022] EWCA Civ 422, [2022] to which I was referred by counsel. I was also referred to the earlier case of JSC BTA Bank v Ablyazov [2011] EWHC 2988 (Comm) and the subsequent case of Wragge v Opel Automobile GMBH [2024] EWHC 1138 (KB).[47]Carr LJ explained:
“62. For ease of reference, I summarise the relevant general principles as follows: i) The defendant has a right to be sued (if at all) by means of originating process issued within the statutory period of limitation and served within the period of its initial validity of service. It follows that a departure from this starting point needs to be justified; ii) The reason for the inability to serve within time is a highly material factor. The better the reason, the more likely it is that an extension will be granted. Incompetence or oversight by the claimant or waiting some other development (such as funding) may not amount to a good reason. Further, what may be a sufficient reason for an extension of time for service of particulars of claim is not necessarily a sufficient reason for an extension for service of the claim form; iii) Where there is no good reason for the need for an extension, the court still retains a discretion to grant an extension of time but is not likely to do so; iv) Whether the limitation period has or may have expired since the commencement of proceedings is an important consideration. If a limitation defence will or may be prejudiced by the granting of an extension of time, the claimant should have to show at the very least that they have taken reasonable steps (but not all reasonable steps) to serve within time; v) The discretionary power to extend time prospectively must be exercised in accordance with the overriding objective. 63. Following up on the question of limitation, as noted in Qatar at [17(iv)] (and Al-Zahra at [52(3)]), it was stated in Cecil (at [55]) that a defendant’s limitation defence should not be circumvented save in “exceptional circumstances”
. This is a phrase that needs to be approached with care; it is one about which the judge himself expressed reservations. At their outer limit, the words “exceptional circumstances” can be taken to mean “very rare” (or “very rare indeed”). In the present context, however, the phrase should not be taken to mean any more than its literal sense, namely “out of the ordinary”. It means, as identified for example in Hoddinnott at [52], that the actual or potential expiry of a limitation defence is a factor of considerable importance. The factors in favour of an extension of time will have to be, either separately or cumulatively, out of the ordinary. Only in this way can the phrase “exceptional circumstances” be reconciled with the primary guidance in Hashtroodi (at [18]) and [22]) that the discretion under CPR 7.6(2) is to be exercised in accordance with the overriding objective and in a “calibrated” way, as emphasised in Qatar at [17(iii)]. It is neither helpful nor necessary to go further in terms of guidance, by reference to a need for “powerful good reason”, as the judge suggested, or otherwise. […] 65. Finally, and self-evidently, the result of an application under CPR 7.6(2) in each case will be highly fact-specific. A comparison with the outcome on the facts of other cases is unlikely to be instructive.” i) The defendant has a right to be sued (if at all) by means of originating process issued within the statutory period of limitation and served within the period of its initial validity of service. It follows that a departure from this starting point needs to be justified; ii) The reason for the inability to serve within time is a highly material factor. The better the reason, the more likely it is that an extension will be granted. Incompetence or oversight by the claimant or waiting some other development (such as funding) may not amount to a good reason. Further, what may be a sufficient reason for an extension of time for service of particulars of claim is not necessarily a sufficient reason for an extension for service of the claim form; iii) Where there is no good reason for the need for an extension, the court still retains a discretion to grant an extension of time but is not likely to do so; iv) Whether the limitation period has or may have expired since the commencement of proceedings is an important consideration. If a limitation defence will or may be prejudiced by the granting of an extension of time, the claimant should have to show at the very least that they have taken reasonable steps (but not all reasonable steps) to serve within time; v) The discretionary power to extend time prospectively must be exercised in accordance with the overriding objective.

Applications For Extensions Without Notice

[48]The Chancery Guide provides in [4.19] in relation to applications for an extension of time:
“The court may grant an extension of time for service of a claim form on an application by the claimant under CPR 7.6, and subject to the requirements of that rule. Such an application is invariably made without notice, and any order granted is vulnerable to being set aside on an application made later by the defendant under CPR 23.10, which may be a particular risk if an extension is granted at or towards the end of the limitation period.”
[49]The danger for the claimant was explained by Dyson LJ in Hoddinott at [50]:
“Thus if a claimant applies for and obtains an extension of time for service of the claim form without giving notice to the defendant, he does so at his peril. He should know that an order obtained in such circumstances may be set aside. He can take no comfort from the fact that the court has made the order…”
[50]The relevant duty of full and frank disclosure on a without notice application is set out as follows in the Chancery Guide at [15.32]:
“… on all applications made in the absence of the respondent, including applications made on paper, the applicant and their legal representatives owe a duty to the court to disclose all matters relevant to the application. This includes all matters of fact or law, whether known to the applicant or which would have been known had proper enquiries been made, which are or may be adverse to the applicant.”
[51]The principles have been discussed in many cases, often in the context of freezing injunctions as they were recently in Mex Group Worldwide v Ford [2024] EWCA Civ 959. In that case the Court of Appeal explained that where a court was considering whether to set aside an order made ex parte in circumstances where important information had not been disclosed a proportionate approach to assessing failures must be taken and the court is to be guided by the interests of justice.[52]Constable J in Wragg made these points:(i) the ‘golden rule’ as stated in Knauf UK GmbH v British Gypsum Ltd [2002] EWCA Civ 1570 at [65] is as follows: “an application for relief without notice must disclose to the court all matters relevant to the exercise of the court's discretion; that failure to observe this rule entitles the court to discharge the order obtained even if the circumstances would otherwise justify the granting of such relief; that a due sense of proportion must be maintained between the desiderata of marking the courts displeasure at the non-disclosure and doing justice between the litigants”(ii) the approach to be applied in the event of a breach of the duty set out in Arena Corp Ltd v Schroeder [2003] EWHC 1089 at [213] is as follows: “(1) If the court finds that there have been breaches of the duty of full and fair disclosure on the ex parte application, the general rule is that it should discharge the order obtained in breach and refuse to renew the order until trial. (2) Notwithstanding that general rule, the court has jurisdiction to continue or re-grant the order. (3) That jurisdiction should be exercised sparingly, and should take account of the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure. (4) The Court should assess the degree and extent of the culpability with regard to non-disclosure. It is relevant that the breach was innocent, but there is no general rule that an innocent breach will not attract the sanction of discharge of the order. Equally, there is no general rule that a deliberate breach will attract that sanction. (5) The Court should assess the importance and significance to the outcome of the application for an injunction of the matters which were not disclosed to the court. In making this assessment, the fact that the judge might have made the order anyway is of little if any importance. (6) The Court can weigh the merits of the plaintiff’s claim, but should not conduct a simple balancing exercise in which the strength of the plaintiff’s case is allowed to undermine the policy objective of the principle. (7) The application of the principle should not be carried to extreme lengths or be allowed to become the instrument of injustice. (8) The jurisdiction is penal in nature and the court should therefore have regard to the proportionality between the punishment and the offence. (9) There are no hard and fast rules as to whether the discretion to continue or re-grant the order should be exercised, and the court should take into account all relevant circumstances.”(iii) a breach of the duty may be “deliberate” notwithstanding a lack of intention to mislead the Court: Wragg at [30] – [34], as where it is known that prima facie the claims are time barred under the ordinary limitation period in English law but that is not disclosed: Libyan Investment Authority v JP Morgan Markets Ltd [2019] EWHC 1452 at [110].

Limitation

[53]In determining whether to extend time the Court will not finally determine a question of limitation arising. Instead as Longmore LJ explained in City & General (Holborn) Ltd v Royal & Sun Alliance Plc [2010] EWCA Civ 911 at [7]):
“It is well-settled that when debatable issues of limitation arise, it is inappropriate to attempt to decide them on an interlocutory application for an extension of time for service of a claim form. If the claimants' argument that the claims are not time-barred is correct, they can always begin a fresh action in which, if a time-bar is asserted, it can be adjudicated upon. It is enough for a defendant to show that he might be deprived of a defence of limitation if time for service of a claim form is extended; if he can show that, an extension should not be granted or, if granted without notice, such extension should be set aside, see Hashtroodi v Hancock [2004] 1 WLR 3206 [18] and Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806 [52].”
[54]Similarly, in a case where there are arguments about when each claim became time-barred, it will not be appropriate to consider each of the claims separately and come to a separate conclusion about limitation in respect of each: see Wragg at [102].[55]A failure to draw to the Court’s attention possible limitation defences on a without notice application to extend time is of particular importance. Constable J in Wragg said at [103]:
“I would add that the Judge does not appear to have refocussed, when considering the applications for an extension of time, upon the failure within the applications to give full and frank disclosure of the position relating to limitation. Unlike in the context of the Service Out Applications, the existence of potential limitation defences was highly material to the initial exercise of considering whether, and if so for how long, an extension of time ought to have been granted. The existence of limitation defences changed the very test the Judge had to consider and apply when considering the matter ex parte: it was not enough to show a ‘good reason’: the circumstances were required to be exceptional, in the sense of something out of the ordinary, as considered above. Seen through this lens, the conscious decision not to refer to limitation issues in the evidence supporting the Extension Applications was, in my view, a significantly more serious transgression of the duty of full and frank disclosure. In the exercise of my discretion this factor, of itself, militates much more strongly towards setting aside the order and strongly supports the determination I have otherwise arrived at…”
The Second Defendant’s Submissions Limitation

The Second Defendant’s Submissions

[56]Mr Blake submits that limitation is relevant to:(i) full and frank disclosure; and(ii) the test to be applied in reconsidering the Extension Applications and, whether “exceptional circumstances” are required.[57]On the claimants’ own case, they terminated the relevant agreements on 13 November 2017. Claims alleged to arise under the various agreements must have accrued no later than the date on which they are said to have been terminated. Although other pleaded claims may have arisen in the period after termination, the acts complained of seem from the Particulars of Claim to have occurred in early 2018. Any cause of action raised in the First Proceedings, issued on 29 June 2018, must have accrued by that time. By 1 July 2024, the end of the extension granted on the Second Extension Application, six years had passed since the issue of the First Proceedings.[58]Contract claims are subject to a six-year limitation period from accrual of the cause of action. Contractual claims concerning pre-termination matters will have accrued, at the latest, on 13 November 2017. Other pleaded complaints concern acts in the period January to March 2018 and causes of action referrable to these acts will have accrued in early 2018. So far as the pleading complains of “an unlawful means conspiracy and/or have unlawfully interfered with the Claimants’ economic interests” by reference to “the facts and matters pleaded above”, a six-year limitation period applicable to these tortious allegations would expire in the first quarter of 2024.[59]This is a case in which the second defendant “might be deprived of a defence of limitation” if the Extension Orders are upheld, so the principles applicable to extension cases where the limitation period is expiring are engaged. It is not for the Court to decide the limitation points, and nor is it appropriate to consider each of the asserted claims separately.

Full and frank disclosure

[60]Mr Blake says the claimants failed to disclose “all matters relevant to the exercise of the court’s discretion” in the following three respects:(i) they failed to draw attention to the possible limitation issue. The Court was not made aware of the consequences of extending time and was therefore not asked to assess the evidence by reference to the correct test;(ii) they incorrectly said or implied that all outstanding costs orders had been paid. They failed to disclose the unpaid Additional Costs or the history of unpaid costs orders in circumstances where the court had previously made extensions of time conditional upon payment of costs orders; and(iii) they failed to disclose or explain their own periods of delay in providing the documents to the FPS and the statements that they had “done all they reasonably can to effect service” were not correct, since they had not taken the single step (appointing KSA Counsel) which they ought to have taken and which, when they did take, led to prompt service.[61]Accordingly the Court should simply discharge the Extension Orders and refuse to renew them. The jurisdiction to re-grant the orders, is to be exercised “sparingly” and should take account of the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure.[62]The discretion to re-grant the orders should not be exercised in this case.(i) there was never any proper justification for the Extension Orders, and they would, if re-granted now, unjustifiably deprive the second defendant of a limitation defence;(ii) there is significant culpability for the non-disclosure that occurred given the history of what had occurred in the period from August 2021 to January 2022 and the remarks of the two Deputy Masters, in particular in relation to the unpaid costs. The potential limitation issue must have been obvious. There has been no explanation how the omissions arose, from which it should be inferred they were deliberate. The only apology made in evidence was in respect of late payment, an apology for the limitation omission was offered at the hearing;(iii) the matters not disclosed are likely to have had a decisive impact on the Court. Had the Court been aware of the unpaid Additional Costs, the history of the matter, the limitation issues and/or the claimants’ delay, it would not have granted the relief sought (or, at the very least, would have insisted that the Additional Costs be paid forthwith as a pre-condition to granting further relief); and(iv) this is a case in which the public interest requiring full and fair disclosure weighs heavily: the claimants are repeat offenders, as noted by two Deputy Masters, and the claimants seem only to pay costs when expedient to them to do so and have avoided risking being compelled to do so by failing to draw the unpaid Additional Costs to the attention of the Court when seeking the previous Extension Orders.

No exceptional circumstances or good reasons

[63]The claimants’ evidence did not, and does not, meet the strict test for extending time under CPR 7.6(2) in any event. Because limitation was in issue, “exceptional circumstances” are required. The claimants will generally have to show that they have taken “all reasonable steps” and/or that their “good reason” “directly impacts on the limitation aspect of the problem”. The relevant points are these:(i) the claimants knew from at latest 9 March 2021 that it would take twelve months or more to serve in KSA. That was presumably the reason why the Arkush Order gave them twelve months from the date of that hearing within which to serve. They received the same information again on 27 September 2021;(ii) following the Arkush Order the claimants did not request translations until 11 January 2022, and it then took more than three months before those translations were sent to the FPS on 26 April 2022. The documents, when provided to the FPS, contained errors and were returned, so that the correct documentation was not provided to the FPS for onward transmission to KSA until 27 July 2022. These delays are, in and of themselves, sufficient to extinguish any proper case for relief under CPR 7.6(2);(iii) once the documents had been sent to the FPS, the only further steps taken were emails and a small number of calls to the FPS, at each stage shortly before the expiry of the extension period. On each occasion the claimants were told that there was no update. There is no dispute that instructing KSA Counsel to liaise with the Ministry of Justice or to act on the party’s behalf is a possible course to achieve service of documents;(iv) the claimants did instruct KSA Counsel to effect service in the First Proceedings but opted not to instruct KSA Counsel until August 2024 in the Present Proceedings. The claimants have not adduced any evidence: (a) from Al-Fallaj to explain the nature of the delays in KSA; (b) that they could not have instructed KSA Counsel before August 2024; or (c) that it would have made no difference had they done so. When KSA Counsel were eventually instructed, the proceedings were served relatively quickly.[64]In those circumstances, the second defendant submits that there were no exceptional circumstances and no sufficiently good reason to justify the Extension Orders, and the Claimants did not take all reasonable steps to serve the Claim Form. The Claimant’s Submissions Good reason for the inability to serve within time

The Claimant’s Submissions

[65]Mr De Froment points out that the claimants were required by the Arkush Order to serve in accordance with CPR 6.40(3)(a) (through judicial authorities in KSA) and/or (c) (method permitted by law of KSA). He says they cannot be criticised for seeking to serve through the FPS and the KSA authorities.[66]Once the documents were with the FPS, the claimants had no control over the timescale for service to occur. The combination of the FPS and KSA authorities meant that service could not be effected within the periods provided for by the Arkush Order and the first two Extension Orders. That was a difficulty in effecting service as identified in Cecil. Mr De Froment relied upon Crossroads Corporate Finance (UK) LLP v Ontario Management Limited & Ors [2025] EWHC 1011 (Comm) [26]-[27], where the claimant could not take matters into its own hands and that difficulty of service was found to be a good reason.

Will a limitation defence be prejudiced by the Extensions?

[67]Mr De Froment says that even if the defendants are correct that limitation defences arose in November 2023 so that limitation was in issue from the August 2022 Application onwards the circumstances in which the Extension Orders were sought must be considered:(i) the hearing before Deputy Master Arkush was inter partes. He and the defendants would have been aware of the causes of action and the material dates for limitation purposes when it was agreed that service be “under the rules which themselves flow from international conventions” rather than by alternative (and faster) means: Arkush Judgment [16]; and(ii) the time when any limitation point would have been material was accordingly before Deputy Master Arkush, not on the Extension Applications. The Extension Applications were necessitated by delays in service by the KSA authorities which were outside the claimants’ control and presumably unforeseen by Deputy Master Arkush.[68]It would be unjust if the slowness of service by the KSA authorities were allowed to operate retrospectively to negate the effect of the Arkush Order and cause them to lose valuable claims against the defendants. The claimants have other claims for which limitation is not an issue.

Reasonable steps to serve within time

[69]The claimants did not leave the issue of proceedings until just before limitation expired and then issue their extension application at the very last minute, as happened in Hastroodi.[70]The claimants took reasonable steps to effect service on the defendants within time.(i) the claimants applied to serve out of the jurisdiction on 10 March 2021, less than a month after the issue of the claim form;(ii) it was reasonable for the claimants to wait until the Arkush Order was made on 20 September 2021 before taking further steps to serve the defendants.(iii) the proceedings were then stayed until the claimants paid the Outstanding Costs on 13 January 2022. The need for additional time to pay those costs was not unreasonable, as the grant of extensions of time to pay by the Court shows;(iv) the claimants sought guidance from the FPS on 24 September 2021, four days after the Arkush Order was made;(v) the FPS again indicated that service on KSA would take a minimum of 12 months from when the documents were received by the KSA authorities;(vi) the claimants initiated the process of obtaining the translations of the service documents on 11 January 2022, two days before the lifting of the stay, and received those translations on 8 March 2022;(vii) they sent the service documents to the FPS on 26 April 2022 and then sent documents with a corrected translation certificate and list to the FPS on 27 July 2022, the same day they received the corrected translation certificate;(viii) once the documents had been received by the FPS, the claimants applied for an extension promptly on 18 August 2022. It was reasonable to seek an extension to 1 December 2023 in light of what they had been told by the FPS about the time for service;(ix) the time that the British and KSA authorities took to effect service in KSA was outside the claimants’ control. The claimants were not reasonably required to take steps such as instructing counsel in KSA;(x) the claimants took reasonable steps to obtain updates from the FPS;(xi) it was plainly reasonable for the claimants to make the November 2023 and June 2024 Applications only once it became clear that service would not be effected by the existing deadline. To make the applications earlier would have been unnecessary and wasteful (including of court resources); and(xii) once the claimants were informed that service on the first defendant through the KSA authorities had failed, they instructed Al-Fallaj to assist with service in KSA. Until that time they had no reason to believe service through the KSA authorities would fail, as distinct from simply taking a long time.[71]In the circumstances, the claimants satisfy the “reasonable steps” threshold for the purposes of each of the Extension Orders. It follows that any prejudice to the second defendant in relation to potential limitation defences is not determinative of whether those orders should have been granted.[72]There was good reason to grant the Extension Orders in order to permit service through the KSA authorities in circumstances where:(i) the second defendant cannot complain about the Arkush Order;(ii) the Arkush Order extended time to 1 September 2022;(iii) the claimants delivered the service documents to the FPS and the process of service through the KSA authorities began before 1 September 2022;(iv) that process was outside the claimants’ control;(v) service would take a minimum of 12 months from the receipt of the documents by the KSA authorities and so could not have been completed before 1 September 2022; and(vi) service on the second defendant by the KSA authorities in fact took until 16 November 2024.[73]Had the Extension Orders not been made, the claimants could not have served on the second defendant through the KSA authorities as contemplated by the Arkush Order.

Alleged non-disclosure - Limitation

[74]The claimants accept that they did not draw potential limitation defences to the Court’s attention in applying for the extensions to permit the KSA authorities to serve the proceedings.[75]It is submitted that this does not amount to a material non-disclosure justifying the setting aside of the Extension Orders:(i) as explained in Murray 2 at [39], there was no intention on the Cs’ part not to provide full and frank disclosure of relevant matters. This is not a case of a culpable failing.(ii) the question of potential limitation defences was not material to the Extension Applications in the circumstances;(iii) service through the KSA Authorities was expressly contemplated by the Arkush Order but in the event would never have been possible within the time provided for in that order, thus necessitating the Extension Orders.

Alleged Non-Disclosure - Unpaid Costs

[76]The claimants have apologised for not drawing the late payment of both the Outstanding Costs and the Additional Costs to the Court’s attention in the Extension Applications, as has DMH, but say there was no intention not to provide full and frank disclosure of relevant matters. This is not a case of a culpable failing.[77]Issues relating to the late payment of the Outstanding Costs were ventilated inter parties before Deputy Master Arkush and Deputy Master Francis, and they were paid.[78]The claimants have also apologised for the late payment of the Additional Costs and provided an explanation for that late payment.[79]Non-disclosure of the costs issues relied on by the second defendnat does not justify setting aside the Extension Orders.

Alleged Non-Disclosure - Delays in service

[80]The timeline of the steps taken by the claimants was clearly and expressly disclosed in the evidence in support of the Extension Applications.[81]Ashdown 4 set out the chronology of the steps taken by the claimants until that date, specifically setting out the dates on which they had made enquiries of the FPS, commissioned certified translations of the service documents, sent the documents to the FPS, received them back from the FPS and sent corrected documents to the FPS. The time they had taken for each step was thus expressly and clearly drawn to the court’s attention. The evidence in support of the two subsequent Extension Applications referred to Ashdown 4 and updated the Court on steps taken since the previous application.

Injustice to the Cs

[82]Mr De Froment submits that discharging the Extension Orders would work severe injustice to the claimants if its effect were to deprive them of very valuable claims against the second defendant.

Discussion and Conclusions on the Set Aside Application

[83]The starting point is that the second defendant has the right to be sued within the initial statutory period of limitation and served within the period of the validity of the claim form. Any departure from that position must be justified. The initial period of validity expired on 11 August 2021.[84]The first hurdle for the claimants is to satisfy the court that they had a good reason for needing the Extensions. In the absence of a good reason the court may, but is not likely to, grant an extension.[85]The three Extension Orders, extended time beyond a point at which the second defendant had at least arguable limitation defences to some of the claims made so they must show that they took reasonable steps (but not all reasonable steps) to serve within time. As explained in Brittany Ferries the potential expiry of a limitation defence is a factor of considerable importance in exercising the discretion afforded by CPR 7.6(2) in accordance with the overriding objective.[86]In accordance with what was said by Carr LJ at [69] of Brittany Ferries my task is to “evaluate the reason [for the need for the extensions of time] and then put that reason into a wider context, which requires consideration of the overriding objective and the balance of hardship to the parties.”[87]At the hearing before Deputy Master Arkush the parties reached agreement that time would be extended by one year to 1 September 2022. That date was well within any possible expiry of a six year limitation period. The date was presumably settled upon because of the information provided to DMH in March 2021 that service would take at least 12 months. The parties also reached agreement that service might be either in accordance with CPR 6.40(3)(a) or (c).[88]From the date of the Arkush Order onwards there were available to the claimants two routes to effecting service – relying on the FPS and the KSA authorities or taking matters into their own control and serving in accordance with the law of KSA, by engaging an agent of some sort as described in Phipps 1 and as they eventually did. Engaging an agent might also have speeded up service by the KSA authorities, as appears ultimately to have happened in the case of the second defendant. This case may therefore be distinguished from Crossroads Corporate, where the only permissible method of service was through the FPS and the German Central Authorities. I do not consider that Deputy Master Arkush’s remark about service not being agreed to be by alternative faster means has any relevant bearing on the position agreed by the parties which gave the claimants two available routes to effect service.[89]As recorded in the Arkush Order, the claimants agreed that they would make a payment of costs as a condition of the claim continuing. That they later obtained further time to make the payment as a result of the applications dealt with by Deputy Master Francis does not mean that it was not reasonable, in parallel with those applications, to take steps to be ready with the service documents or otherwise progress service. It cannot be right for the claimants to say that, because they needed time to pay the defendants, they were entitled not to progress service during that same period; compare the rejection of an argument that awaiting funding gave a good reason for not serving in Cecil.[90]If translations had been commissioned promptly after the hearing on 29 August 2021 and obtained within the one-week period referred to in Phipps 1 the correct paperwork could have been ready to be sent to the FPS during the second half of January 2022 rather than 6 months later.[91]In parallel, having had confirmation on 27 September 2021 that the anticipated period for service through the FPS and KSA authorities was longer than the agreed extension, it was reasonable for the claimants to have taken steps to progress service with the assistance of an agent in the KSA. They cannot say that because two possible routes of service were agreed they were entitled to follow one route only, particularly as they knew that route was unlikely to be successful in time.[92]Once 1 September 2022 was approaching and the First Extension Application seeking an extension for 15 months was in contemplation, it must have been apparent that service through the FPS might not be effective even in that timeframe, the papers having only recently reached the FPS. Accordingly, even if they should not have done so in September 2021, they certainly should have taken matters into their own control and instructed an agent in the KSA by this stage. The longer time went on without the KSA authorities certifying successful service on the defendants the less reasonable it was for the claimants to simply rely upon the hope that the FPS would achieve service without some further step being taken by the claimants. By the time of the Second Extension Application, nearly eighteen months had passed since the correct pack of documents had been sent to the FPS. By the time of the Third Extension Application, it was approaching 2 years. The claimants were informed that service on the first defendant had failed on 26 April 2024, as was explained in the Third Extension Application. The claimants only finally took the step that led to service in August 2024.[93]It must also have been apparent when the First Extension Application was made that any application for an extension beyond 13 November 2023 would be beyond the primary limitation period for at least some of the claimants’ causes of action. It was incumbent upon the claimants to mention in their evidence in support of the First Extension Application that there was at least an argument that a limitation period would expire in relation to some of the claims before the expiry of the period of extension for which application was made. That further limitation arguments might become available to the defendants in early 2024 meant that the evidence in support of the Second Extension Application seeking an extension to 1 July 2024 should have referred to these additional limitation points.[94]While there are claims against the second defendant which may not now be statute barred it is certainly arguable that there are claims which are now out of time. I do not accept that claimants’ submission to the effect that the limitation point was material only at the hearing before Deputy Master Arkush. On that occasion the extension that was agreed between the parties was to a date that was unarguably within the limitation period for all claims against the defendants. It is only the subsequent Extension Applications that have sought to extend time arguably beyond the expiry of relevant limitation periods.[95]It is not for me on this occasion to resolve for certain what, if any, claims are now statute barred. It is enough, in deciding whether to allow an extension of time, that it is a factor of considerable importance there are debatable limitations issues and that the second defendant might be deprived of a limitation defence: see City & General (Holborn).[96]Although Murray 2 accepts that potential limitation defences and the fact that the Additional Costs were outstanding were not drawn to the attention of the Court on any of the three Extension Applications it is said that there was no intention not to provide full and frank disclosure.[97]No explanation has been offered by or on behalf of Mr Ashdown why Ashdown 4 did not fully explain the costs position as it stood at the date of that witness statement, including that the Additional Costs had been outstanding for some seven months. In the context of the previous criticisms made by the Deputy Masters and the condition as to payment of costs that was agreed in the Arkush Order, to fail to set matters out unambiguously was not excusable.[98]So far as concerns limitation, I have rejected the claimants’ submission that limitation was not material on the Extension Applications, as opposed to before Deputy Master Arkush. It first became material when the First Extension Application for an extension to 1 December 2023 was requested and the position evolved as time went on so that further arguable limitation defences would become available to the second defendant in the period over which the Second Extension Application sought the extension. Again these were matters that should have been set out with clarity in the evidence in support of the Extension Applications.[99]So far as it is said that there was a failure to give full and frank disclosure about the timeline of steps taken to effect service, I conclude that the steps that were taken were reported. It is the step of instructing an agent in the KSA that was not taken and which I have concluded should have been taken that was not mentioned in the evidence and instead the evidence referred to matters being outside the control of the claimants, which was not in reality the case.[100]My conclusion is that the claimants had no good reason not to have served by the time the First Extension Application was made. This is not a case where service was out of the claimants’ control. They could not only have taken more expeditious steps to deliver the correct paperwork to the FPS but they could have instructed an agent in KSA much earlier and within the period of the validity of the claim form. If I am wrong about that, such good reason as they may have had had was less good by the time of the Second Extension Application and without doubt not good by the time of the Third Extension Application.[101]For the reasons I have already set out I do not consider that the claimants took reasonable steps to serve the claim within the extended time agreed and recorded in the Arkush Order expiring on 1 September 2022.[102]Arguable limitation defences are now available to the second defendant, so factors in favour of allowing the Extension Orders to stand would have to take the case “out of the ordinary.”[103]To the extent that, in the circumstances, I have a discretionary power to allow the Extension Orders to stand, it is necessary for me to determine whether the factors in favour of that course take the case out of the ordinary. I must exercise that power in accordance with the overriding objective. I must:(i) balance the loss of valuable claims asserted by the claimant against the possible loss of limitation defences asserted by the second defendant;(ii) bear in mind that this is the third time that the claimants have brought proceedings in similar terms against these defendants and that they have to a large extent been the authors of their own misfortunes in not having previously achieved service of the proceedings on the second defendant;(iii) bear in mind that although the first defendant may have been validly served with the Present Proceedings, he has at least suggested (although not yet acted upon) his own jurisdiction challenge and it would be wrong to assume in favour of the claimants that the Present Proceedings will proceed against him in all respects as a reason in favour of upholding the Extension Orders against the second defendant. So far as the first defendant is concerned there may in any event be different limitation arguments;(iv) take into account what I have found to be significant failures of full and frank disclosure in the evidence in support of the Extension Applications as to the costs position, as to limitation and as to steps which the claimants could have taken, but did take, to effect service. The failure to refer to the limitation defences potentially available was material to the questions whether and for how long Deputy Master Bowles and I might have granted the Extension Applications. I can only describe the failure to mention the unpaid costs, given the history, as perturbing.[104]On analysis the claimants did not have a good reason for being unable to serve by 1 September 2022 and they had not taken reasonable steps to serve the claim form by that date. In circumstances where the second defendant’s limitation defence to at least some of the claims against it will be prejudiced, the First Extension Order will be set aside. To the extent that any consideration of the overriding objective should lead to any different conclusion, particularly in the circumstances of the claimants’ non-disclosure, I am not persuaded that it does. The claimants’ position becomes successively less meritorious with the Second and then the Third Extension Orders and they too will be set aside. The three Extension Orders and service of the claim form should be set aside as against the second defendant.

CPR rules 7.6(3), 6.16 and 6.15

[105]I must now therefore determine whether I should make:(i) an order extending time for service of the claim form to 1 September 2025 pursuant to CPR 7.6(3);(ii) an order dispensing with service pursuant to CPR 6.16(1); and/or(iii) an order validating out-of-time service by alternative means pursuant to CPR 6.15(1).

Claimants’ Submissions

[106]As to CPR 7.6(3) the claimants say :(i) it is relevant that service has in fact been effected. This is not a case where the act of service is yet to be carried out;(ii) it is submitted that the claimants took all reasonable steps to effect service in KSA in the relevant period and so meet not only the r.7.6(2) threshold but also the r.7.6(3) threshold;(iii) the claimants applied for a retrospective extension promptly: they did so once the Jurisdiction Application had been made such that an issue had arisen whether the Extension Orders would be set aside. That must be as promptly as r.7.6(3) can require;(iv) whether or not limitation is in issue is irrelevant under r.7.6(3): Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203; Zuckerman on Civil Procedure 4th Ed. at 5.108.[107]In the alternative the claimants ask for an order for alternative service on the second defendant pursuant to CPR 6.15 or dispensing with service pursuant to CPR 6.16. The claimants say:(i) the applicable test under 6.15 is whether there is good reason to order service by alternative means (see the 2025 White Book, notes 6.15.3, 6.15.5 and 6.40.4). KSA is not a Hague Convention state and so the “exceptional circumstances” threshold does not apply here: M v N [2021] EWHC 360 (Comm) at [8];(ii) there is good reason for such an order in all the circumstances of this case;(iii) DMH shared the service documents with LK by electronic file sharing so that the second defendant is in possession of the claim form and particulars of claim in English and Arabic translation such that an order under r.6.15(2) that steps already taken to bring the claim form to the second defendant’s attention should constitute good service.

Second Defendant’s Submissions

[108]The second defendnat’s say in circumstances where the Extension Orders are to be set aside, it is difficult to see how an application under the more stringent requirements of CPR 7.6(3) could succeed. In any event:(i) the claimants did not take all reasonable steps to serve the claim form within the period of its initial validity. There was a long period of delay within the initial period for which the claimants are to blame;(ii) the initial period expired on 1 September 2022, and the claimants have not therefore acted promptly in making the application.[109]So far as CPR 7.6(3) is concerned Zuckerman summarises its effect as follows at [5.96]:
“the rule-maker’s intention that a claimant should be able to obtain a retrospective extension only if they are free of blame for the failure to serve in time, and only if they have acted with reasonable alacrity to put things right once the period of service has expired. The rule reflects the importance attached to service by the due deadline so as to ensure that the process of service is not unnecessarily dragged out and that defendants are not unduly deprived of the benefit of limitation.”
[110]The jurisdictional thresholds of CPR 7.6(3) are not met. Even if they were, the Court should not exercise its discretion to grant retrospective relief in circumstances where the Extension Orders have been set aside and the effect of doing so would be to deprive the Defendants of a limitation defence some eighteen months after limitation expired.[111]Lacey v Palmer Marine Services Ltd [2019] EWHC 112 is authority that it is impermissible to circumvent CPR 7.6(3) by an order dispensing with service pursuant to CPR 6.16.[112]The second defendant says it would be perverse if a claimant could achieve precisely that which Lacey forbids in respect of CPR 6.16 by instead seeking an order under CPR 6.15 that steps already taken (after the claim form had expired) amount to good service. As Zuckerman explains at 5.111, by reference to both CPR 6.15 and 6.16:
“However, the policy articulated by the Court of Appeal, that the power to permit service by an alternative method should not be used as an ex post facto ruse for rectifying defective service or as a way of extending the period for service independently of CPR 7.6, remains good law. CPR 6 was amended in 2008 so that the power to make an order for alternative service is governed by CPR 6.15 and the power to dispense with service by CPR 6.16. The policy of refusing to use these escape routes has, however, been maintained and the court will not normally come to the aid of a claimant who failed to serve the claim form in time by making an order under these provisions.”

Discussion and Conclusion

[113]Given my conclusions about the steps taken by the claimants to effect service - those steps were not all reasonable steps within the agreed period of validity of the claim form - CPR 7.6(3) is not engaged. If I were to be wrong about that I would have accepted the claimants’ submission that the application was made promptly as it was made as soon as it was apparent that there was an issue with the Extension Orders and any earlier application would have been premature.[114]Even if the jurisdiction were engaged, in all the circumstances of this case as I have described above, I would not be minded to exercise my discretion under 7.6(3) to enable the claimants to escape the consequences of the Extension Orders being set aside.[115]Similarly, for the claimants to be able to resort to CPR 6.15 or 6.16 as a means of extricating themselves from the service difficulty they find themselves in would subvert CPR 7.6(3).[116]I will dismiss the February 2025 Extension Application and the Alternative Service Application against the second defendant.