Crossroads Corporate Finance (UK) LLP v Ontario Management Limited & Ors

On a re-hearing of without-notice applications, an extension of time for serving a claim form should be justified against the defendant’s right to service within the period of initial validity. The court must assess the reason for delay, any limitation prejudice, the claimant’s steps to serve, the overriding objective and the balance of hardship. Where service abroad depends on court and foreign administrative systems whose timescales are outside the claimant’s control, that may constitute a good reason. The claimant must show reasonable steps to serve within time, but need not show that it took every possible step. The assessment is fact-specific. Extensions were upheld where the cumulative circumstances were out of the ordinary and the defendant was not materially prejudiced in preparing a defence.

The claimant, an English corporate finance adviser, brought claims against three defendants in contract, unjust enrichment, breach of confidence and unlawful means conspiracy. The first and second defendants had been served. The third defendant, resident in Germany, challenged without-notice orders permitting service out of the jurisdiction and extending the time for service.

The orders were made on 2 May 2023, 8 November 2023 and 13 May 2024. Service was eventually effected in Germany in November 2024. The third defendant sought a re-hearing of the extension applications, alleging inadequate steps to serve, limitation prejudice and a failure of full and frank disclosure. The central issues were whether the extensions were properly granted and whether the earlier orders should be set aside.

1. The application failed. The permission to serve out and the extensions of time remained effective. The court treated the applications as a re-hearing because the original orders had been made without notice, rather than as a review.
2. Applying ST v BAI (SA) (t/a Brittany Ferries) [2022] EWCA Civ 1037, the court treated the defendant’s right to service within the initial period as the starting point. The reason for inability to serve was highly material. The claimant had to show reasonable steps to serve within time where limitation might be prejudiced, but not all reasonable steps required for a retrospective application under CPR 7.6(3). The court also had to apply the overriding objective and balance the parties’ hardship.
3. Service through the Foreign Process Section and the German authorities could not have been completed within the initial period on the information available in May 2023. That was a good reason because the claimant could not control or expedite those processes. The claimant had also taken reasonable steps by negotiating, seeking alternative service, seeking consensual service through solicitors and applying for extensions before the last moment.
4. The limitation prejudice was significant, but it was outweighed by the claimant’s reasons for delay, the continuing non-contractual claims, the prejudice to the other defendants from further delay and the third defendant’s prior knowledge of the claim. The circumstances cumulatively were out of the ordinary. The three-month delay before filing with the Foreign Process Section did not justify refusal of the second extension.
5. The full and frank disclosure challenge failed. The alleged omissions and inaccurate description of contact with the solicitors were not sufficiently material. The court applied Tugushev v Vitaly Orlov and others (No. 2) [2019] EWHC 2031 (Comm), requiring full and frank disclosure while maintaining a due sense of proportion.
6. Permission to appeal was refused because the proposed appeal had no real prospect of establishing that the decision was not reasonably open to the court.

Not stated in the judgment.