Raayan Al Iraq Co Ltd & Ors v Trans Victory Marine Inc & Ors

Relief from sanctions for late service should be determined by considering all the circumstances and the demands of justice. The court must enforce compliance with procedural rules, but a short, non-deliberate delay does not automatically justify the loss of a claim. Particular weight may be given to whether the default caused prejudice, whether relief was sought promptly, whether the breach was intentional or egregious, and whether refusal would produce a disproportionate or unjust result. Commencing proceedings within a contractual time bar is not undone merely because particulars of claim were served late.

The claimants brought cargo claims arising from cargo lost or damaged during a voyage. Proceedings were issued before the expiry of agreed extensions to a one-year contractual or Hague Rules time bar. Under CPR 58.5, particulars of claim were due on 23 July 2013 but were served two days late. The claimants applied for a retrospective extension of time and relief from sanctions. The defendants opposed the application, relying on the alleged time bar and other procedural criticisms, and sought dismissal or strike-out of the proceedings. The central issue was whether the court should regularise the two-day default under CPR 3.9.

1. Application granted. The court granted a two-day extension for service of the particulars of claim and regularised the proceedings.
2. CPR 3.9 requires consideration of all the circumstances so that the application is dealt with justly, including efficient and proportionate litigation and enforcement of compliance with rules and orders. The revised rule reflects a stricter approach to default, but it does not require relief to be refused whenever there has been non-compliance, nor only in exceptional circumstances.
3. The relevant considerations included the effect on the administration of justice, promptness, intention, the explanation for default, compliance with other procedural requirements, and the effect of granting or refusing relief. Here the delay was short, inadvertent and not egregious. The application was prompt once the defendants indicated that they would take the point. There was no material prejudice, and no trial date was affected.
4. The complaints concerning the absence of a pre-action letter and alleged impropriety did not materially weigh against relief. The parties had already discussed the cargo claims, and the Commercial Court Guide encouraged restraint rather than unnecessary procedural expense.
5. The court rejected the submission that granting relief would strip the defendants of a contractual time bar. Suit had been brought before the extended time limit expired. The need for an extension to permit the claimants to proceed with particulars did not mean that suit had not been brought. The overriding objective required relief.