Qatar Investments and Project Development Holding Company & Anor. v Phoenix Ancient Art S.A.

On a prospective application to extend time for serving a claim form, the court must identify from the evidence the actual reasons why service was not achieved and evaluate their strength in accordance with the overriding objective. A circumstance that would have prevented timely service in any event does not justify an extension unless it actually caused the need for one.

Reliance on disruption caused by the Covid-19 pandemic requires evidence showing its effect on the conduct of the particular case. The court cannot assume that general business disruption caused the delay. Where limitation has expired, the claimant must address the resulting prejudice to the defendant’s limitation defence, and an extension will require a sufficiently good reason.

The claimants bought an object described as the Head of Alexander the Great as Herakles from the defendant for US$3 million. They later alleged that it was not an ancient Greek artwork. They issued their claim shortly before the limitation period expired but did not serve it within the six months allowed for service outside the jurisdiction.

An order extending time was made without notice while the Foreign Process Section was closed because of the Covid-19 pandemic. On the defendant’s application, Master Gidden set aside that order. William Davis J dismissed the claimants’ appeal in [2021] EWHC 2243 (QB).

The further appeal concerned whether the Master had failed to make proper allowance for the closure of the Foreign Process Section and the pandemic’s wider disruption. The central issue was whether either circumstance provided a sufficiently good reason to extend time under rule 7.6(2) of the Civil Procedure Rules 1998.

1. Appeal dismissed unanimously. The Master applied the correct approach and reached conclusions that were open to him on the evidence. William Davis J was right to uphold his decision: paras [45]–[51].
2. An application under rule 7.6(2) of the Civil Procedure Rules 1998 requires the court to find, from the evidence, the reasons why an extension is needed. It must then evaluate whether those reasons are sufficiently good to justify an extension. The inquiry concerns what actually caused the failure to serve, rather than what might have prevented service in a counterfactual scenario: paras [34]–[37].
3. The closure of the Foreign Process Section did not cause these claimants to require an extension. They had taken no timely steps to prepare for foreign service and did not discover the closure until late June 2020, when an extension was already necessary. The closure merely added to their existing problems. A claimant who had prepared sensibly for service and was then prevented from serving by the closure might have had a good reason, but that was not this case: paras [34]–[38], [49]–[50].
4. Evidence is required for pandemic-related reasons just as it is for any other ground supporting an extension. The pandemic affected businesses differently. A court cannot take judicial notice that general disruption caused delay in the conduct of a particular case; it needs sufficient detail to find the relevant facts and evaluate the application: para [40].
5. The evidence before the Master attributed the delay to hopes of settlement, the assumption that the defendant’s English solicitors would accept service and the time taken to prepare for foreign service. It did not explain how pandemic disruption affected the timetable. A later witness statement was not before the Master and was, in any event, too vague and speculative to carry material weight: paras [41]–[44].
6. Because the claim had been issued shortly before limitation expired, the defendant’s limitation defence carried considerable importance. The unexplained delay did not supply a good reason capable of justifying the extension. The pandemic therefore provided no basis for restoring the extension order or exercising the discretion afresh in the claimants’ favour: paras [45]–[50].

1. Court of Appeal (Civil Division): The claimants’ appeal was dismissed unanimously. The court upheld the refusal to extend time for serving the claim form: [2022] EWCA Civ 422.
2. High Court, Queen’s Bench Division: William Davis J dismissed the claimants’ appeal, holding that the Master had made no error of law and had reached a decision within the proper scope of his discretion: [2021] EWHC 2243 (QB).
3. Master: Master Gidden granted the defendant’s application to set aside the earlier without-notice order extending time for service.