Ethan Thomas Wragg & Ors v Opel Automobile GmbH & Ors

On without-notice applications for service out of the jurisdiction, applicants must disclose matters relevant to the jurisdictional and merits thresholds, including a potentially substantial limitation defence. A breach remains a breach even where disclosure would not have changed the order.

The appropriate response is discretionary and penal. The court must assess culpability, significance, prejudice and proportionality. In large group litigation, setting aside service-out orders may be disproportionate where many claims are unaffected by limitation or may depend on individual factual evidence.

Under CPR 7.6(2), the court applies the overriding objective and a calibrated approach. The reason for delay and any prejudice to limitation defences are highly material, but the rule contains no absolute preconditions. Co-ordination of very large group claims, coupled with practical difficulties in Hague Convention service and unco-operative conduct by defendants, may constitute a good reason or exceptional circumstances.

The claimants brought multi-party claims alleging that the defendants installed unlawful emissions-control defeat devices in Vauxhall-branded vehicles. Applications were made by the German defendants to set aside orders permitting service out of the jurisdiction and orders extending time for service.

The applications alleged that the claimants had failed to disclose potential limitation defences and Germany as an alternative forum when obtaining permission to serve out without notice. They also challenged the extensions of time under CPR 7.6(2), contending that the claimants had not shown a good reason, had delayed service and had potentially deprived the defendants of limitation defences.

The central questions were whether there had been material breaches of the duty of full and frank disclosure and, if so, what sanction was proportionate; and whether the extensions of time should be set aside.

1. Disposition. The defendants’ applications were dismissed. The orders permitting service out and extending time for service were retained.
2. Full and frank disclosure. The potential availability of limitation defences affecting a substantial proportion of the claims was material to whether there was a serious issue to be tried. It should have been disclosed. The breach was deliberate in the sense that the issue was known and omitted, but it was not deliberate or reckless in the culpable sense: it resulted from a wrong judgment call.
3. The court would nevertheless have granted permission had the limitation issue been disclosed. In a group action involving tens of thousands of claimants, it was not proportionate to determine limitation generically at the service-out stage. Individual claims might depend on section 32 of the Limitation Act 1980 and oral evidence.
4. The evidence sufficiently identified Germany as a potential alternative forum. The claimants were therefore not in breach on that issue. Alternatively, any omission would have been minor and would not have justified setting aside the orders.
5. Sanction. The usual response to a breach is discharge of the order, but the jurisdiction is penal and proportionality is required. Setting aside the orders would terminate potentially tens of thousands of viable or arguably viable claims, including claims unaffected by limitation. A costs order was a sufficient sanction for the limitation non-disclosure.
6. Extensions of time. CPR 7.6(2) confers a discretion governed by the overriding objective. The reason for non-service is highly material. A calibrated approach applies: the stronger the reason, the more likely an extension will be granted. The absence of a good reason does not remove the discretion, although an extension is then less likely.
7. Although merely hoping that foreign defendants will accept service is generally insufficient, the present group litigation was materially different. Co-ordination of 31 claim forms involving tens of thousands of claimants, the substantial cost and complexity of Hague Convention service, and the defendants’ failure to give clear or co-operative responses constituted a good reason and exceptional circumstances for the earlier extensions.
8. There was insufficient evidence to establish a good reason for every part of the later period before documents were lodged for service. The court nevertheless exercised its discretion to retain the extensions, having regard to the defendants’ conduct, the practical difficulties of service, the limited period lacking a good reason, and the uncertain extent of any limitation prejudice.