ST v BAI (SA) trading as Brittany Ferries

A prospective application to extend time for service under CPR 7.6(2) requires a justified departure from the ordinary service period. The court must evaluate the reason for the extension and then assess it in the wider context of the overriding objective and the parties’ hardship. A claimant need not show that it took all reasonable steps, although an accrued limitation defence is a factor of considerable importance. References to exceptional circumstances mean factors that are out of the ordinary, not necessarily very rare.

An appellate court reviewing a procedural discretion must not conduct the balancing exercise anew. It may interfere only where the decision falls outside the range reasonably open to the first-instance decision-maker.

The claimant alleged that she was sexually assaulted in her cabin while travelling on a ferry operated by the defendant. She brought a negligence claim subject to a two-year limitation period. The claim form was issued shortly before expiry of that period but required service in France within six months.

When attempts to arrange service shortly before the deadline encountered difficulties and an allegedly disproportionate fee, the Admiralty Registrar prospectively extended time under CPR 7.6(2). He later refused to set that order aside. On the defendant’s appeal, the Admiralty Judge set aside the extension and struck out the claim: [2021] EWHC 2228 (Admlty).

The central issue was whether the judge was entitled, on a limited appellate review, to overturn the registrar’s discretionary assessment.

1. Appeal allowed. Lady Justice Carr, with whom Lord Justice Popplewell and Lady Justice Simler agreed, held that the Admiralty Judge was not entitled to interfere with the registrar’s decision. The extension of time was therefore restored.
2. A prospective application under CPR 7.6(2) differs materially from a retrospective application. The prospective jurisdiction does not require proof that the claimant took all reasonable steps to serve the claim form. The governing exercise is to assess the reason for the required extension, then consider that reason in the wider context of the overriding objective, limitation and hardship. An accrued or potential limitation defence is highly important, but “exceptional circumstances” means circumstances out of the ordinary, rather than necessarily very rare: Hashtroodi v Hancock [2004] EWCA Civ 652.
3. The High Court appeal was a review, not a rehearing, under the Civil Procedure Rules 1998. The judge should have asked whether the registrar’s decision lay within the generous ambit of reasonable disagreement. He instead recast the registrar’s finding as one of impossibility of service and substituted his own view of the facts and proportionality.
4. The registrar had a proper evidential basis for treating the service difficulties as a “middling-good” reason. The claimant’s solicitors reasonably pursued medical evidence and sought confirmation whether English solicitors would accept service. They were repeatedly assured that service in France could be achieved in time, then learned shortly before the deadline that the available route involved an excessive fee. Although earlier enquiries would have been more prudent, that consideration did not displace every other factor. This was unlike the funding-driven delay considered in Cecil v Bayat [2011] EWCA Civ 135.
5. The registrar was also entitled to weigh the prompt application, the defendant’s prior knowledge of the claim and medical evidence, the absence of litigation prejudice, and the claimant’s loss of her action if the extension were removed. His conclusion that the balance of hardship favoured the claimant was reasonably open to him.

• Court of Appeal (Civil Division): Allowed the claimant’s second appeal, restoring the extension of time for service: [2022] EWCA Civ 1037.
• High Court, Admiralty Court: Andrew Baker J allowed the defendant’s appeal, set aside the registrar’s extension and struck out the claim: [2021] EWHC 2228 (Admlty).
• Admiralty Registrar: Granted a prospective extension on 5 August 2020 and, on 26 February 2021, refused the defendant’s application to set it aside.