Stuart Lunn v Antarctic Logistics Centre International (Pty) Ltd (No 2)

On a without-notice application to extend time for service of a claim form, the duties of full and transparent disclosure and the requirement to take reasonable steps before seeking an extension are distinct. A prospective application does not require the claimant to have taken all reasonable steps to serve within time. Disclosure is limited to matters relevant to the proposed extension, rather than every argument or litigation strategy concerning the underlying claim. Review of alleged culpable non-disclosure requires a fact-sensitive assessment of culpability, materiality, proportionality and all relevant circumstances.

The claimant issued proceedings concerning an accident and sought permission to serve the claim form out of the jurisdiction. Before the time for service expired, he applied without notice for an extension under the Civil Procedure Rules. The court granted an extension, and the defendant later sought to set that order aside, alleging material non-disclosure concerning limitation, delay and correspondence about jurisdiction and service. The issue was whether the extension should be reviewed and discharged.

1. The court dismissed the part of the defendant’s application seeking to set aside the order extending time for service. The remaining jurisdiction issue was left to be determined separately.
2. The duties applicable to a without-notice application and the requirement under Civil Procedure Rules 1998 rule 7.5 to take reasonable steps before seeking an extension are complementary but distinct. Disclosure must fairly present factors relevant to the proposed extension. It need not contain general arguments and counter-arguments about the underlying claim.
3. Following ST v BAI (SA) (t/a Brittany Ferries) [2022] EWCA Civ 1037, the test differs according to whether the application is prospective or retrospective. A prospective application requires reasonable, but not all reasonable, steps to serve within time and reasonable, but not all reasonable, steps to issue the extension application.
4. The principles drawn from Re OJSC Yugraneft v Sibir Energy PLC [2008] EQHC 2614 (Ch) require assessment of the degree and extent of culpability, the importance of the undisclosed matters, the merits, proportionality and all relevant circumstances. The jurisdiction is penal and should not be applied so severely that it becomes an instrument of injustice.
5. Failure expressly to identify the limitation consequence of the extension was not material in this personal injury claim, because the position was apparent. The timing of the application did not establish culpable delay. The correspondence was fairly summarised, and uncertainty about the eventual method of service did not undermine the reasonable steps taken.