Doliaa SAS & Anor v Mediterranean Shipping Company S.A.

Under CPR 7.6, an extension of time to serve a claim form is a discretionary departure from the defendant’s entitlement to service within the initial validity period. The reason for the delay is highly material, and the discretion must be exercised in accordance with the overriding objective. Where limitation has expired or may be prejudiced, the circumstances supporting an extension must be out of the ordinary. Settlement discussions may justify a short initial delay, but they do not ordinarily justify postponing essential steps to secure service, particularly where the claimant knows that service will be slow. Failure to act promptly after obtaining an extension, together with incomplete disclosure on the application, may make the extension unsustainable.

The claimants brought a cargo claim against the defendant carrier under a bill of lading subject to the Hague Rules and a one-year time bar expiring on 10 May 2022. They issued the claim form on 9 May 2022 but did not serve it in Switzerland during its initial validity period. Robin Knowles J granted a first extension to 9 March 2023, and Waksman J granted a further extension to 9 June 2023. Service occurred on 2 May 2023. The defendant applied to set aside both orders, contending that the claimants had delayed service without good reason and had not given full and frank disclosure. The central issue was whether the second extension, and the first extension insofar as relevant, should stand.

1. The Second Order was set aside. The claimants’ failure to serve during the initial period was arguably justified, although the judge had reservations. Their failure to serve by 9 March 2023 was wholly unjustified.
2. The principles governing CPR 7.6 were those summarised in ST v BAI (SA) (t/a Brittany Ferries) [2022] EWCA Civ 1037, at [62]–[63]. A defendant is ordinarily entitled to be sued by originating process issued within the limitation period and served within the initial validity period. A departure requires justification, and the reason for inability to serve is highly material.
3. Where limitation has expired or may be prejudiced, the circumstances supporting an extension must be out of the ordinary. This guidance must be reconciled with a calibrated exercise of the discretion under CPR 7.6(2), applying the overriding objective.
4. It was reasonable initially to explore settlement and whether the defendant would nominate English solicitors to accept service. After 20 July 2022, however, the claimants had no reason to expect such nomination and should have proceeded on the basis that service in Switzerland was required. Once informed of the Foreign Process Section’s backlog and an estimated five-month delay, it was imperative to lodge the documents promptly.
5. The claimants did nothing towards service until February 2023, despite knowing that the claim was time-barred and that the extension to 9 March 2023 afforded little margin. Continuing without prejudice negotiations could not sufficiently explain that delay.
6. The first application also failed to bring clearly to the court’s attention that the claim was already time-barred. That was a serious lapse, but the post-First Order delay was decisive. The First Order was not set aside on the judge’s analysis.

not stated in the judgment.