DDM v Al-Zahra (PVT) Hospital & Ors

An appeal from an order setting aside extensions of time for service of a claim form is ordinarily a rehearing where the underlying application was made without notice. The court may receive further evidence, subject to appropriate scrutiny and the avoidance of second bites at the cherry.

Applications to extend time for service out of the jurisdiction must be supported by a proper explanation, but the six-month period does not necessarily cater for every delay inherent in the Foreign Process Section procedure. The court must apply the overriding objective and consider the practical circumstances, including any failure by defendants or their representatives to respond to reasonable pre-action communications. Where those matters may materially affect the result, an opportunity to provide further evidence should generally be given.

The claimant brought a wrongful birth claim arising from alleged failures in ante-natal care provided in the United Arab Emirates. Proceedings were issued in England against the hospital, medical practitioners and related defendants. Because service had to be effected out of the jurisdiction, the claimant obtained two extensions of time for service from Master Cook.

After service, the first to sixth defendants applied to set aside the extensions. Master Cook upheld the first extension but set aside the second, bringing the proceedings to an end. The claimant appealed, arguing that the Master had wrongly refused an adjournment, had treated the matter as a review rather than a rehearing, and had failed to take account of the practical difficulties of service through the Foreign Process Section. The central issue was whether the extensions should stand.

1. The appeal was allowed. The order of Master Cook dated 12 July 2017 was set aside. The extensions of time for service were upheld, and directions were to be agreed for the outstanding issues.

2. An application to set aside an extension order made without notice, and an appeal from the resulting decision, involves a rehearing rather than merely a review. The court may receive further evidence and reach a fresh decision, while giving the lower court’s decision the weight it deserves. The power is not unlimited, and the court must guard against a second bite at the cherry.

3. The Master erred by refusing an adjournment to permit further evidence. The hearing was concerned with the substance of the extension applications, not merely with reviewing the material originally placed before the court. The omission was material because the further evidence could have affected the outcome, particularly where the interests of a seriously disabled child were engaged.

4. Under CPR 7.6 and Practice Direction 7A, the claimant must explain the failure to serve and demonstrate the relevant procedural conditions where applicable. The guidance in Hashtroodi v Hancock and Hoddinott v Persimmon Homes (Wessex) Ltd is of general importance, but applications remain fact-sensitive. Service through the Foreign Process Section may involve delays which are not necessarily accommodated by the ordinary six-month period for service out of the jurisdiction.

5. The claimant’s reliance on that process was reasonable because no alternative method of service had been identified. The defendants’ complete failure to respond to repeated communications materially hindered investigation of the claim and weighed heavily against the otherwise important consideration that the limitation period had expired. The evidence ultimately established that all reasonable steps to serve had been taken and justified both extensions.

6. The Master should also have addressed the defendants’ late acknowledgments of service before entertaining the application to set aside the extension orders. Relief from sanctions was appropriate, however, and the application to set aside could therefore be considered on its merits.

• High Court (Queen's Bench Division): the appeal from Master Cook’s order of 12 July 2017 was allowed and the extensions of time for service were upheld.