Nefelia Shipping SA & Anor v Mosaic Fertilizantes Do Brazil Ltda & Anor

On an application to set aside an without-notice extension of time for serving a claim form, the court conducts a rehearing and exercises its discretion in accordance with the overriding objective. The central inquiry is why service was not completed within the claim form’s initial validity period. The court must assess the quality of the explanation in a calibrated way, giving greater weight to stronger reasons, but may grant an extension even where no single period of delay has an ideal explanation.

The court must also weigh the defendant’s right to timely service, any limitation prejudice, informal notice, the timing of issue and service, and the practical consequences of refusing relief. Minor deficiencies in full and frank disclosure do not automatically require an extension order to be set aside.

The claimants, shipowners and assignees, sought contributions to general average from Brazilian cargo interests and their insurer under a general average bond and guarantee. The claim form was issued in September 2023. The court granted an initial extension of time for service and later granted a further without-notice extension to 15 November 2025 under CPR r.7.6(2).

Service through the Foreign Process Section and the Brazilian central authority was delayed by repeated document requirements, rejections and translation issues. The defendants applied to set aside the second extension order, arguing that the evidence disclosed no good reason for delay and that the claimants had breached their duty of full and frank disclosure. They also sought to set aside the claim form and service and to prevent the court exercising jurisdiction.

1. Application to set aside dismissed. The defendants’ applications to set aside the Second Extension Order, the claim form and service, and to obtain a declaration that the court would not exercise jurisdiction, were dismissed.
2. Under [2004] 1 WLR 3206, an application to set aside an without-notice extension under CPR r.7.6 is a rehearing rather than a review. The discretion must be exercised under the overriding objective. The starting point is the defendant’s right to be sued by originating process issued within the limitation period and served within the claim form’s initial validity. Any departure requires justification.
3. Following [2022] EWCA Civ 1037, the reason for the failure to serve is highly material. The court should adopt a calibrated assessment: the better the reason, the more likely an extension; incompetence, oversight or waiting for another development may be insufficient. Even without a good reason, the discretion remains, although an extension is then unlikely. Limitation prejudice and informal notice are relevant considerations.
4. The five periods of delay had to be examined separately, including whether each delay was justified and causative. There was no significant delay in obtaining advice before submission. Although follow-up and re-submission could have been more urgent, the evidence did not establish negligence, incompetence or culpable lack of oversight. The later rejection by the Brazilian authorities resulted from requirements unknown to the Foreign Process Section and could not reasonably have been known to the claimants.
5. The overriding objective supported the extension. The claim was not a surprise, the defendants had agreed to the exclusive jurisdiction of the English court, the claim form was issued well before the limitation period expired, and service occurred within the initial validity period of a claim form issued immediately before expiry.
6. The duty of full and frank disclosure applied to the without-notice application. The omission to emphasise the possible limitation defence and the applicable legal test was, at most, minor. It did not justify setting aside the order. There was no material failure to disclose alleged solicitor incompetence or the Foreign Process Section’s earlier guidance.