Cavadore Limited & Anor v Mohammed Jawa & Anor

The court considered applications to set aside three without-notice extension orders for service out of the jurisdiction and to set aside service of the claim form on the second defendant. The governing principles were CPR 7.5 and 7.6 on extension of time for service, the duty of full and frank disclosure on without-notice applications, and the importance of limitation defences. The judge concluded that the claimants had not taken all reasonable steps to effect service within the initial validity period of the claim form, had failed to draw to the court’s attention potentially dispositive limitation issues and had not made full and frank disclosure about outstanding costs and the steps they could have taken to expedite service. Because arguable limitation defences would be prejudiced, the judge set aside the three Extension Orders and the service of the claim form on the second defendant and dismissed the claimant’s later applications for retrospective extension and alternative service in relation to that defendant.

The claimants, Cyprus companies, brought proceedings against two defendants concerning franchise agreements and alleged breaches relating to trade marks and other equitable and contractual remedies. The proceedings arose from attempts to serve the claim form in the Kingdom of Saudi Arabia. The claimants obtained an initial order permitting service out but the proceedings developed a complex history including previous proceedings, unpaid costs orders and a conditionally-agreed service route involving the Foreign Process Section and Saudi authorities.

The second defendant applied under CPR Part 11 to set aside three without-notice orders extending time for service (made on 17 August 2022, 1 December 2023 and 19 June 2024) and to set aside service of the claim form. The claimants in turn sought (i) a further extension of time to 1 September 2025, (ii) permission for alternative service or dispensing with service, and (iii) orders about service on the first defendant. The judge heard the applications together.

The issues framed by the court were whether (a) the without-notice extension orders should be set aside for failure of full and frank disclosure and/or because the claimants had not taken all reasonable steps to serve within time, (b) arguable limitation defences would be prejudiced by allowing the extensions to stand, and (c) whether retrospective relief under CPR 7.6(3) or orders under CPR 6.15/6.16 should be granted.

The court applied established authorities on CPR 7.6, the duty of disclosure on ex parte applications and the approach to limitation on interlocutory extension applications. The judge found that the claimants repeatedly failed to disclose matters material to the exercise of discretion: they did not adequately disclose potential limitation points when applying for the extensions; they failed to draw attention to unpaid additional costs; and they did not explain or justify why they had not earlier instructed Saudi-based agents or counsel who could have speeded service. The claimants had available, and ultimately used, the option of instructing Saudi counsel; that step could and should have been taken earlier. Because arguable limitation defences to some claims would be lost if the extensions stood, the judge found the claimants needed to show they had taken reasonable steps and, in the absence of such reasonable steps and adequate disclosure, set aside the three extension orders and the service on the second defendant. The court declined to grant retrospective relief under CPR 7.6(3) or to permit alternative or dispensed service under CPR 6.15/6.16, observing that permitting such orders would subvert the policy underpinning CPR 7.6(3).

This is a first-instance decision. The court set aside the three without-notice Extension Orders (dated 17 August 2022, 1 December 2023 and 19 June 2024) and set aside service of the claim form on the second defendant. The court dismissed the claimant’s February 2025 Extension Application and the Alternative Service Application in respect of the second defendant. Rationale: the claimants had not taken all reasonable steps to serve within the original validity period, had failed to make full and frank disclosure on the without-notice extension applications (notably about potential limitation defences and unpaid costs), and allowing the orders to stand would likely deprive the second defendant of arguable limitation defences.