F G Hawkes (Western) Ltd v Beli Shipping Co Ltd

When an application to extend the validity period for serving a claim form is made before expiry, the court has a discretion under CPR r.7.6(2). There is no threshold requirement of good reason, no fixed checklist, and no automatic advantage from applying in time. The court must ask why service was not effected and apply the overriding objective. The strength of that reason is ordinarily decisive. Neglect, incompetence or oversight by the claimant or its lawyers is a powerful reason to refuse relief. Prioritising another claim, relying on insurers or managers to provide an address, knowledge of the proceedings, and absence of prejudice may assist the claimant, but will not usually outweigh such neglect. Ex parte evidence seeking an extension must be full and frank. A refusal of an extension may be proportionate even where the claim is not time-barred by any other means.

The claimant brought a cargo-damage claim under a bill of lading containing a one-year time limit. The claim form was issued on the last day of an agreed extension, but the claimant took no steps to ascertain the defendant’s address or serve the claim form for more than five months of the six-month period permitted for service out of the jurisdiction.

Before expiry, the claimant applied ex parte under CPR r.7.6(2) for a further extension. Burton J granted the application. After service, the defendant challenged jurisdiction, sought to set aside that order, or alternatively sought strike-out. The central issue was whether the extension should be sustained in circumstances where the delay resulted from concentrating on a separate insurance claim and leaving service arrangements until shortly before expiry.

1. The application succeeded. The court reheard the extension application. The Burton order extending time for service was set aside in substance, and no further extension was granted. The defendant’s application therefore succeeded.
2. CPR r.7.6(2) differs materially from r.7.6(3). An application made within the validity period is not subject to the threshold conditions in r.7.6(3), and the former requirement of showing good reason is not imported. Nor is there a CPR r.3.9(1)-style checklist.
3. The discretion under r.7.6(2) must nevertheless be exercised consistently with the overriding objective in CPR rr.1.1 and 1.2. The court must ask why the claim form was not served in time. The better the reason, the more likely an extension; the weaker the reason, the more likely refusal.
4. Neglect or oversight by the claimant’s legal representatives was a powerful reason for refusal. The claimant had done nothing for more than five months because attention was directed to cargo insurers. The fact that the application was made before expiry did not itself assist. Nor did reliance on the P&I insurer or vessel managers, who had no legal duty to provide the service address. The claimant bore the risk of their non-cooperation.
5. The assumed good arguable claim, the defendant’s knowledge of the proceedings, absence of prejudice, and the fact that the application was made in time were insufficient, separately or cumulatively, to outweigh the neglect. The correct address could have been obtained relatively simply by timely use of shipping registers, the Lloyds Maritime Intelligence Unit, or a local lawyer or agent.
6. The court also stressed that evidence supporting an ex parte application must be full and frank. Compressed evidence which conceals more than it reveals may justify setting aside an extension, although that issue was left undecided here. The incorrect CJJA endorsement and use of the managers’ c/o address were not material to the result. The court refused the extension rather than applying alternative sanctions.