Euro-Asian Oil SA v Abilo (UK) Ltd & Ors

Under CPR r 7.6(2), the court must evaluate why a claim form was not served within time. A good reason is not a threshold requirement, but the discretion is strict and calibrated. A very good reason will usually justify an extension; the weaker the reason, the less likely an extension becomes. Delay caused by waiting for settlement, solicitors’ instructions, further information or amended particulars is generally inadequate and may amount to a bad reason. Prior knowledge of the claim and the fact that proceedings are not limitation-barred are relevant, but neither is determinative. Exceptional circumstances may justify an extension despite the absence of a good reason. A foreign defendant is entitled not to instruct English solicitors to accept service.

The claimant issued a claim form on 5 April 2012 against three defendants. Service outside England and Wales had to take place within six months under CPR r 7.5. The claimant served or attempted to serve the other defendants but did not take steps to serve Credit Suisse in Switzerland until after the original period had expired.

Christopher Clarke J granted an ex parte extension of time on paper. Credit Suisse applied to set that order aside. The claimant argued that the earlier application had effectively been on notice, that Credit Suisse had suffered no prejudice, and that the procedural consequences of fresh proceedings justified maintaining the extension. The central issue was whether the claimant had shown sufficient grounds for the court to exercise its discretion under CPR r 7.6(2).

1. The application was granted. The earlier order extending time for service on Credit Suisse was set aside. The claimant’s application before Christopher Clarke J had been ex parte on notice, not inter partes. Credit Suisse had not waived proper notice and was entitled to have the issue considered de novo.
2. Under CPR rr 7.5 and 7.6, the court must consider and evaluate the reason for non-service. The authorities establish a calibrated approach rather than a threshold requirement of good reason. The regime remains strict because service gives the defendant notice of formal litigation, enables participation and permits court control of the proceedings.
3. The claim was not limitation-barred and Credit Suisse had received notice and a copy of the claim form. Those matters were relevant. They did not compel an extension. The exceptional result in Hoddinott v Persimmon Homes (Wessex) Ltd was not a general rule that those factors automatically required an extension.
4. The claimant’s explanation was either absent or amounted to a bad reason. It had decided by July that proceedings were necessary, yet took steps to serve another defendant while giving no explanation for failing to serve Credit Suisse at the same time. Waiting for settlement, considering amendments and delaying service until particulars were settled did not justify the delay.
5. The claimant could not fairly attribute the delay to Credit Suisse’s refusal to instruct English solicitors. A foreign defendant, particularly where joinder invokes an exorbitant jurisdiction, is entitled not to instruct English solicitors unless it voluntarily chooses to do so. The need for separate proceedings was neutral at best because it resulted from the claimant’s own decisions.