Stuart Lunn v Antarctic Logistics Centre International (Pty) Ltd

A claim form intended from issue to be served out of the jurisdiction is governed by the six-month period for such service. A marking stating that it is not for service out of the jurisdiction does not convert it into a claim form for service within the jurisdiction, nor does it impose the four-month restriction in CPR 7.6(3) on a later application for permission to serve out.

Where an order permitting service out fails to specify the periods for filing an acknowledgment of service and challenging jurisdiction, as required by CPR 6.37(5), the defendant cannot be treated as out of time by reference to assumed periods derived from the Practice Direction. The court may permit reliance on evidence served late under an inter-parties agreement where the breach is not serious, the explanation is reasonable, and exclusion would be disproportionate.

The claimant brought a personal injury claim arising from an accident in Antarctica against a South African company. The claim form was issued against defendants outside the jurisdiction and marked not for service out of the jurisdiction. Permission to serve out and an extension of time were later granted without notice.

The defendant was served with the claim and order but not with the supporting witness statement or all application materials. It subsequently acknowledged service and applied to challenge jurisdiction. The preliminary issues were whether the extension of time had been validly granted, whether the defendant’s application properly included a jurisdiction challenge, whether that challenge was in time, and whether the defendant should rely on late factual and documentary evidence.

1. Extension of time. The claim form had always been intended for service on defendants outside the jurisdiction. Its marking as not for service out was procedural confirmation that permission was required under CPR 6.34; it did not determine the period of validity. The four-month restriction in CPR 7.6(3) therefore did not apply. Anderton v Clywd CC and Nesheim v Kosa were followed. American Leisure Group Ltd v Garrard was distinguished on its materially different facts. The court was entitled to extend time.
2. Nature of the application. The defendant’s 14 February 2023 application, read with its draft orders and supporting narrative, sought both an extension of time and substantive relief challenging jurisdiction. It was not confined to seeking permission to formulate a later application.
3. Time for challenging jurisdiction. CPR 6.37(5) required the order permitting service out to specify the periods for filing an acknowledgment of service and other responses. The order did not do so and was defective. The claimant could not replace that omission by relying on the general provisions concerning orders made without notice. The defendant could not therefore be treated as having accepted jurisdiction merely because it did not act within periods inferred from the Practice Direction. Even if the analysis fell under CPR 23.10, the defendant had provided a persuasive explanation for delay and the claimant had shown no prejudice.
4. Late evidence. The late witness statement was served pursuant to an inter-parties agreement, not in breach of a sealed order. The distinction meant that the application was governed principally by the overriding objective rather than CPR 3.9 and Denton and Others v T H White Limited. In any event, applying reasoning close to Denton, the breach was neither significant nor serious, the explanation was reasonable, and exclusion of central evidence would be disproportionate. Permission was granted for the defendant to rely on both the Kruger and Stiebel material.
5. The jurisdiction challenge was permitted to proceed. The case was directed to return for determination of jurisdiction, with costs of the written submissions and interim judgment left for agreement or later decision.