Al-Zahra (PVT) Hospital & Ors v DDM

An application to set aside an order extending time for service, where that order was obtained without notice, is determined by rehearing rather than review. The discretion under CPR 7.6 remains strict, particularly after limitation has expired. The reason for failing to serve, the claimant’s diligence and any resulting loss of a limitation defence require careful scrutiny.

Practical difficulty in serving proceedings abroad may justify additional time. It does not excuse lengthy or unexplained delay. A claimant cannot assume that a prospective foreign defendant will respond to pre-action correspondence and must plan promptly for the legal and practical requirements of foreign service.

The claimant brought a wrongful-birth claim arising from antenatal treatment in the United Arab Emirates. She issued proceedings shortly before the applicable limitation period expired and obtained two without-notice orders extending time for service abroad.

On the defendants’ application, Master Cook upheld the first extension but set aside the second because its supporting evidence did not explain the delay. Foskett J, on appeal, treated the matter as a rehearing, admitted a later witness statement and restored the second extension: [2018] EWHC 526 QB.

The defendants appealed. The central questions were whether the Master should have conducted a rehearing, whether the later evidence was admissible, and whether that evidence justified the second extension under the strict regime governing service of claim forms.

1. Appeal allowed. The first extension of time was valid, but the second was not justified. Service of the proceedings on the first to sixth defendants was set aside.
2. An application under CPR 23.10(1) to set aside an order obtained without notice requires a rehearing of the issue, not merely a review of the material originally placed before the court. Master Cook had been encouraged to adopt the narrower approach and had misdirected himself. Foskett J was therefore entitled to remake the relevant decisions and to exercise afresh the discretion to admit further evidence.
3. There was no sufficient basis for interfering with Foskett J’s admission of the later witness statement. Because he was remaking a decision that should itself have been made on a rehearing, the ordinary appellate restrictions concerning fresh evidence did not arise in their usual form. Nevertheless, admission had to be decided objectively and consistently with the requirements of Practice Direction 7A.
4. The first extension was properly granted. The original evidence explained both the difficulty in quantifying the claim and advice from the court’s Process Section that service in the UAE could take more than 12 months. The six-month period for service outside the jurisdiction did not necessarily accommodate the practical difficulties present in this case.
5. The second extension was unjustified even after considering the later evidence. The claimant had issued shortly before limitation expired and then incurred lengthy, substantially unexplained delays. These included delay in approaching the Foreign Process Service, preparing and legalising documents, instructing an expert and completing the service packs. The evidence required particularly careful scrutiny because an extension would prejudice an accrued limitation defence.
6. The defendants’ failure to answer pre-action correspondence carried no substantial weight. A claimant cannot assume that a person outside the jurisdiction will respond before valid service. The absence of a response may make early foreign-law advice and prompt preparation for foreign service more important.
7. Foskett J was entitled to conclude that relief from sanctions should be granted for the defendants’ late acknowledgments of service. Their challenge to jurisdiction was therefore not barred.

Sir Timothy Lloyd agreed, emphasising that a foreign defendant is under no obligation to respond before valid service. David Richards LJ agreed with both judgments.

1. Court of Appeal (Civil Division): Allowed the defendants’ appeal from [2018] EWHC 526 QB. It upheld the first extension, held that the second extension was unjustified, and set aside service on the first to sixth defendants.
2. High Court, Queen’s Bench Division: Foskett J admitted further evidence, upheld both extensions of time and reversed Master Cook’s decision setting aside the second extension: [2018] EWHC 526 QB.
3. Master Cook: On 12 July 2017, upheld the first extension of time but set aside the second because the supporting material did not adequately explain the failure to serve.