Al-Zahra (PVT) Hospital & Ors v DDM

This appeal concerns the correctness of decisions relating to permission to extend time for service of a claim form out of the jurisdiction.

The Appellants appeal the decision of Foskett J dated 23^rd February 2018, whereby he allowed an appeal against a decision of Master Cook dated 12^th July 2017. Master Cook had held that the first extension of time granted by him on 25^th September 2015 for service out of the jurisdiction of the claim form by the Claimant had been properly granted but the second extension of time granted by him on 17^th October 2016 had not been properly granted. On appeal, Foskett J held that both extensions of time had been properly granted.

The substantive proceedings in this case relate to a ‘wrongful birth’ claim brought by the

The Claimant was born in 1975. She became pregnant with her first child whilst living and working in Dubai, UAE. Between 5^th March 2012 and 27^th June 2012, she underwent a series of scans and medical examinations carried out in Dubai. No foetal abnormalities were detected in these procedures. On 2^nd July 2012, the Claimant returned to the UK where she now lives.

On 10^th July 2012, the Claimant underwent a foetal ultrasound scan in Grantham where foetal abnormalities of the heart and kidney were diagnosed. The Claimant’s pregnancy was then close to term and she could not reasonably undergo a termination of pregnancy any longer.

On 13^th July 2012, the abnormalities were identified as 22q chromosome deletion (Di George Syndrome). The gestation of the pregnancy was then 35 weeks.

On 6^th August 2012, the Claimant’s daughter (“Baby M”) was born in Leicester Royal Infirmary. She suffers from Di George Syndrome and has very severe disabilities.

In June 2013, the Claimant instructed Leigh Day, solicitors, to investigate bringing a claim against those responsible for the Claimant’s ante-natal care in the UAE.

It is necessary to set out the procedural history of this matter in some detail.

On 23^rd January 2014, Leigh Day notified the First Defendant of a possible claim by the Claimant. The Claimant’s solicitor, Ms Nicola Wainwright, wrote to the First Defendant,

On 13^th February 2014, the First Defendant’s insurers advised them “not to respond” to correspondence about a possible claim but to pass any further correspondence to the insurers unanswered for their attention.

On 22^nd December 2014, Leigh Day notified the Third to Sixth Defendants of a possible claim by the Claimant. Ms Wainwright sent letters addressed to the individual doctors whose names appeared on the scan reports which the Claimant had obtained from the UAE: Dr Naik (the Fourth Defendant), Dr Alwan (the Fifth Defendant) and Dr Ahmed (the Sixth Defendant) and her treating Obstetrician in the UAE, Dr Nawaz (the Third Defendant). All the letters were sent “care of” the Al-Zahra Hospital. She asked them to provide her with details of their insurers, to confirm whether they held anyone or any other body liable for any negligence in regard to the Claimant’s care and to provide her with copy records and a copy of the contract under which the Claimant was treated. Ms Wainwright received no responses. On 20^th April 2015, she sent further copies of her letter to the Fourth, Fifth and Sixth Defendants and wrote to the Seventh Defendant on the same date.

On 8^th July 2015, the Claimant issued a Claim Form.

On 9^th July 2015, the Claimant applied for service out of the jurisdiction and for an extension of time for service of the Claim Form until 10^th December 2016 (i.e. an additional 11 months beyond the 6 months allowed by the Civil Procedure Rules (“CPR”) for service abroad). The Claimant’s application was supported by a witness statement of the Claimant’s solicitor, Nicola Wainwright of Leigh Day, dated 9^th July 2015

In accordance with sections 4.2 and 4.3 of the Practice Direction to Part 16 of the Civil Procedure Rules the Claimant is required to attach to her Particulars of Claim a Schedule of past and future expenses and losses which she claims and medical evidence of injuries suffered. I am issuing protectively in this case in order to protect the Claimant’s position before limitation expires and I have not yet been able to quantify the Claimant’s claim. In the circumstances I seek an extension of time to file a Schedule of Loss and Damage and any medical evidence in support of the Particulars of Claim to 10 December 2015.

The Claimant also seeks an extension of time for service of the Claim Form, Particulars of Claim and supporting documentation to 10 December 2016. As the Claimant is seeking permission to serve out of the jurisdiction the usual time limit for service is 6 months. However, we have been advised by the Royal Courts of Justice Process Section that it is likely to take more than 6 months and maybe more than 12 months for service to be effected in the UAE and therefore the Claimant seeks an extension of time for service of proceedings at this stage.”

On 5^th August 2015, i.e. 3 years after the birth of Baby M, limitation expired under English law and UAE law (both of which have 3-year limitation periods in personal injury cases).

On 25^th September 2015, Master Cook dealt with the Claimant’s application on paper without a hearing and granted the Claimant permission to serve the Particulars of Claim out of the jurisdiction and granted an extension of time to serve proceedings to 10^th December 2016. Master Cook’s order also provided that the Defendants had 22 days from the date of service for lodging an Acknowledgement of Service.

Thereafter, service of the proceedings was effected in Dubai upon the First Defendant on 8^th February 2017, upon the Fourth Defendant on 12^th February 2017, upon the Second Defendant on 16^th March 2017, and upon the Third Defendant on 11^th April 2017.

On 6^th April 2017, Kennedys Law LLP, solicitors in London, were instructed by the First to Fourth Defendants via Kennedys Dubai office. Kennedys instructions included acting for the Fifth and Sixth Defendants who, at all material times, had been employed by the First Defendant.

On 7^th April 2017, an Acknowledgment of Service was filed on behalf of the First to Fourth Defendants (out of time). A protective Acknowledgment of Service was also filed on behalf of by the Fifth and Sixth Defendants on 19^th April 2017.

On 16^th May 2017, the Claimant applied for an extension of time for service in respect of two further defendants (the Seventh and Eighth Defendants).

On 4^th July 2017, the Claimant filed an application for relief under CPR 3.1 for permission to serve proceedings on the Defendants out of the jurisdiction on a fresh basis and to dispense with re-service. The application was supported by a witness statement

A hearing of the various applications was fixed before Master Cook on 12^th July 2017.

On 11^th July 2017, the day before the hearing, the parties exchanged skeleton arguments. The Defendants stated in their skeleton that it seemed “most unlikely” that all the applications could be heard in the time allotted and submitted that the Master ought to hear the Defendants’ applications (i) to extend time for service of the Acknowledgement of Service and (ii) to set aside the extensions of time granted by Master Cook for service of the proceedings. The Defendants explained that, because they had only received the

The Claimant’s skeleton focussed primarily on the Claimant’s CPR 3.1 application to correct the procedural error. In relation to the Defendants’ application to set aside the extensions of time, the Claimant said that it was not clear whether the Defendants intended to pursue their application to set aside the Claimant’s extensions of time:

It is not clear whether D1-6 intend to pursue this limb of their application in light of the disclosure of application notices and evidence in support which has now been provided.

In any event, C submits that the extensions of time granted on 25/9/2015 and 17/10/2016 were appropriate and justified and should not be set aside. As explained in the application notices and evidence resulting in those orders, extensions of time were necessitated by the reliance on the procedures of the British consular authorities in the UAE for service of proceedings. The extensions were also granted against a background of non-response by the Defendants (deliberate or otherwise) as described at paragraphs 27-37 WS Wainwright 4/7/2017 and above.”

The Claimant appealed Master Cook’s decision to set aside the second extension to the High Court. The Defendants cross-appealed to overturn Master Cook’s decision in respect of the first extension.

On 1^st August 2017, the Claimant served a further witness statement from Ms Wainwright (“Wainwright III”) explaining in detail the procedural history of the matter and the reasons for the steps taken by Leigh Day.

On 23^rd February 2018, Foskett J handed down his judgment whereby he found that both extensions of time for service of the proceedings had been properly granted by Master Cook, i.e. he upheld Master Cook’s decision of 12^th July 2017 confirming the first extension and overturned Master Cook’s decision setting aside the second extension (see further below).

On 19^th March 2019, the Defendants’ appeal in respect of Foskett J’s judgment came before this Court.

In his ex tempore judgment delivered between 2:00pm and 2:45pm, Master Cook carefully summarised the background facts and the procedural history and referred to CPR 7.5, 7.6 and 8.2 and various authorities to which he was referred. He then made the following general observation:

Master Cook said this when dismissing the Defendants’ challenge to the first extension:

Master Cook said this when upholding the Defendants’ challenge to the second extension which he set aside:

The information given by Miss Wainwright at box 10 of the application notice is, in my judgment, sparse to say the least. That is a description which I think Mr Booth was forced to concede as accurate. The claimant’s solicitor failed, it seems to me, in the evidence to explain why there had been further delays in arranging for the service of the documents. There is no explanation of why it is that the papers were only now ready to be served by the Foreign Process Service. There is no explanation, in view of the fact that the information from the court seemed to indicate that it is now likely to take eight months, why service could not have been achieved within the preceding period which was in excess of eight months. In other words, it seems tome that there was a complete failure to comply with therequirements of Practice Direction 7.A and that there wasnot a full explanation why the claim had not been served. The period of time which had elapsed under the first order is simply not addressed and that, in my judgment, is fatal when it comes to a review of this application.

In the circumstances, I have concluded that the secondorder which was granted on the basis of the applicationnotice alone, should be set aside on the basis the court wassimply not provided with the required and/or sufficientinformation to enable it to understand why a furtherextension of time for service was being sought. This result seems to me to be supported by law which I have referred to and which makes crystal clear that such applications should be properly supported by evidence which complies with the Rules. I also bear in mind the comments made by Cox J in the case of [Foran v Secret Surgery[2016] EWHC 1029 (QB)] to the effect that it is not good practice to submit such an application on paper and in circumstances where time limits are running out, such applications should normally be dealt with by way of an urgent hearing or on the telephone and at which the appropriateness of granting relief should be carefully considered (see paragraph 21 of her judgment).

I have had full regard to the fact that this is a potentially large claim. That on the face of it the claimant may well have an arguable case and that the loss of this action may well give rise to either further satellite application or to applications under Section 33. However, it seems to me, on the basis of the authorities, such considerations are in these circumstances otiose. The protection that is offeredto a defendant, particularly where limitation period isexpired or expiring, is that the original application shouldbe sufficiently supported by evidence and scrutinised andonly in the clearest of cases, or where there is good reasonor good reasons, should the extension be granted. For all of these reasons it seems to me that I must set aside the order of 17 October 2016. I decline to set aside the original order of 25 September.” (emphasis added)

Master Cook made no mention of Wainwright II. He appears to have determined the question of the validity of the extensions purely on the material which was previously before him when he originally considered the Claimant’s applications on the papers on 25^th September 2015 and 17^th October 2016.

In his judgment dated 23^rd February 2018, Foskett J partially set aside Master Cook’s decision of 12^th July 2017 and held that both extensions of time granted by Master Cook to the Claimant for service out of the jurisdiction had been properly granted. There were four main stages to Foskett J’s analysis:

First, Foskett J held Master Cook erred in refusing the Claimant an adjournment and the opportunity to file further evidence in support of the Claimant’s applications for an extension of time to serve the claim form on the Defendants out of the jurisdiction in the UAE.

Second, Foskett J held that in view of Master Cook’s error, it was open to the Court on appeal to rehear and remake the decisions.

Third, Foskett J held that in the light of all the evidence, including the further witness statement of Ms Wainwright (Wainwright III), Master Cook was right originally to have granted the two extensions and wrong to have revoked the second extension.

Fourth, Foskett J held that Master Cook should have dealt with the Acknowledgement of Service issue and granted the Defendants relief from sanctions and an extension of time for service of the Acknowledgement of Service.

At paragraph [63] of his Judgment Foskett J said:

Foskett J’s conclusions are to be found at paragraphs [72]-[86]. He explained the reasons for concluding that Master Cook had failed to appreciate that the nature of the hearing before him was a rehearing rather than a review in paragraphs [72]-[73]:

Foskett J explained the approach that he took to remaking the decision of Master Cook in paragraphs [82] and [83] as follows:

Foskett J held that Master Cook should have dealt with the Defendants’ application for an extension of time to serve their Acknowledgements of Service since it went to the jurisdiction of the court to entertain the Defendants’ application to set aside the extension of time for service of the claim form. Foskett J concluded however that, in the circumstances, relief from sanctions should have been granted and, therefore, the Defendants’ application to set aside the extensions should be treated as having been considered properly [84].

The relevant rules regarding the service of claim forms out of the jurisdiction are CPR

CPR 7.5 (2) provides as follows:

CPR 7.6 provides as follows:

within the period specified by rule 7.5 ; or

where an order has been made under this rule, within the period for service specified by that order.

the court has failed to serve the claim form; or

the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and

in either case, the claimant has acted promptly in making the application.

must be supported by evidence; and

may be made without notice.”

The relevant part of Practice Direction 7A provides as follows:

all the circumstances relied on,

the date of issue of the claim,

the expiry date of any rule 7.6 extension, and

a full explanation as to why the claim has not been served.

dispute the court's jurisdiction to try the claim; or

argue that the court should not exercise its jurisdiction may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.

A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.

A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court's jurisdiction.

An application under this rule must –

be made within 14 days after filing an acknowledgment of service; and

be supported by evidence.”

a practice direction makes different provision for a particular category of appeal; or

the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. (2) Unless it orders otherwise, the appeal court will not receive—

oral evidence; or

evidence which was not before the lower court.

The appeal court will allow an appeal where the decision of the lower court was—

wrong; or

unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

The appeal court may draw any inference of fact which it considers justified on the evidence.

At the hearing of the appeal, a party may not rely on a matter not contained in that party’s appeal notice unless the court gives permission.”

There are numerous authorities dealing with the correct approach to the exercise of discretion to extend time for the service of proceedings under CPR 7.6. I set out the principles to be derived from three of the most important authorities.

Hashtroodi v Hancock [2004]

First, Hashtroodi v Hancock[2004] 1 WLR 3206, which concerned an appeal against a Deputy Master’s refusal to set aside a “without notice” extension of time for service of a claim form which had been granted by another Master. The following principles can be derived from the judgment of the court given by Dyson LJ:

There is no threshold requirement, or implied condition, that a “good reason” must be shown for failure to serve a claim form within the specific period before the court can exercise its power to extend time under CPR r 7.6 [17].

The court’s power to extend time (simply) has to be exercised in accordance with the overriding objective under CPR r 1.2(b) [18].

As a matter of common sense, it is not possible to deal with an application for an extension of time under CPR r 7.6(2) “justly” without knowing why the claimant has failed to serve the claim form within the specified period [18].

Under the CPR, a more calibrated approach is to be adopted: where a very good reason is shown for the failure to serve the claim form within the specified period, an extension of time will usually be granted; and generally, the weaker the reason, the more likely the court will be to refuse to grant the extension [19].

If the reason why the claimant has not served the claim form within the specified period is that he (or his legal representative) simply overlooked the matter, that will be a strong reason for the court refusing to grant an extension of time for service [20].

The Woolf reforms aimed to introduce more disciplined approach to the conduct of civil litigation by insisting that time limits be adhered to unless there is good reason for a departure. Dyson LJ cited Lord Woolf MR in the Biguzzi case[1999] 1 WLR 1926: “If the court were to ignore delays which occur, then undoubtedly there will be a return to the previous culture of regarding time limits as being unimportant” [20].

It should be remembered that the time limits (three years and four months) are generous and the claim form does not have to contain full details of the claim. Dyson LJ cited May LJ in Vinos v Marks & Spencer plc[2001] 3 All ER 784, 790, para 20: “…There is nothing unjust in a system which says that, if you leave issuing proceedings to the last moment and then do not comply with this particular time requirement and do not satisfy the conditions in rule 7.6(3), your claim is lost and a new claim will be statute-barred” [21].

In summary, the discretion should be exercised in accordance with the overriding objective, and that the reason for the failure to serve within the specified period is a highly material factor [22].

Dyson LJ also cited (at [18]) with approval the following passage from Professor Zuckerman, Civil Procedure, p. 180, para. 4.121:

Where there is no good reason for the failure to serve the claim form within the four months’ period, the court still retains a discretion to grant an extension of time, but is unlikely to do so [40].

Where a claimant applies for, and obtains, an extension of time for service of the claim form without giving notice to the defendant, he does so at his peril: he should know that the order may be set aside and he cannot be heard to say that he was ‘lulled into a sense of false security’ and blame the court for making the order in the first place [50].

Where an extension of time might disturb a defendant who was entitled to assume his rights could no longer be disputed (because of a time bar), this was a matter of

The court should scrutinise with care applications to grant an extension of time for service of the claim form [55].

Where an application is made after the end of the four month period, the application must be dismissed unless the three conditions specified in CPR 7.6(3) are satisfied. The fact that the claim is not yet time-barred is irrelevant [55].

Where an application is made before the expiry of the four month period, the fact that the claim is clearly not yet time-barred is a relevant consideration [55].

Third, Cecil v Bayat[2011] EWCA Civ 135 which concerned multiple applications for extensions of time in circumstances where the claim would otherwise have been timebarred. The further principles can be derived from the judgment of Stanley Burnton LJ (with whom Rix and Wilson LJJ agreed):

Where an application is made before the expiry of the four month period, but a limitation defence of the defendant may, or will, be prejudiced, the claimant should have to show, at the very least, that he has taken reasonable steps [48].

In the law of limitation, a miss is as good as a mile. The primary question is whether, if an extension of time is granted, the defendant will, or may be, deprived of a limitation defence [54].

It is relevant that the effect of a refusal to extend time will deprive the claimant of what may be a good claim; but (by the same token) the stronger the claim, the more important the defendant’s limitation defence, which should not be circumvented by an extension of time save in exceptional circumstances [55].

In his concurring judgment, Rix LJ emphasised the importance of limitation and the strictness of the CPR 7.6 regime. He pointed out that limitation had been described as a “fundamental right” of a defendant by Lord Browne-Wilkinson in Dagnell v JL Freedman & Co[1993] 1 WLR 388. After reviewing the authorities on CPR 7.6, he stated that “the general regime is a strict one, and that will be particularly the case where limitation is involved” and cited the following passage from the judgment of Mummery LJ in Anderton v Clwyd County Council (No.2)[2002] 1 WLR 3174 at [2]:

It will be evident, therefore, that a recurrent theme emphasised by the authorities is the strict approach that CPR 7.6 was intended to introduce to the grant of extensions of time for the service of claim forms.

The Judge was wrong to admit fresh evidence on the appeal which was not available to the Master and failed to pay any regard to apply the principles in Ladd v Marshall and/or the requirements of the CPR (Grounds 1-4).

The Judge failed properly to scrutinise the evidence which was before the Court on the original applications to extend time for service of the claim form (Ground 5).

The Judge failed properly to scrutinise the fresh evidence which he admitted for the purpose of considering what steps the Claimant’s solicitor could and should have taken prior to the deadline for service (Ground 6).

The Judge failed to apply the restrictive nature of extensions of time for service of the claim form and to take proper account of the fact that (a) it was incumbent upon the Claimant’s solicitors to consider from an early stage the issue of service of the claim form and (b) but for the admitted (but unexplained) delays, the claim form could have been served (even) within the period of the original extension (Grounds 7-9).

The Judge wrongly sought to distinguish the approach of the court in Foran v. Secret Surgery[2016] EWHC 1029 (QB).

The Defendants’ case was that both extensions of time granted by Master Cook on 25^th September 2015 and 17^th October 2016 were wrongly granted. Accordingly, the Defendants argued in this appeal that Foskett J was (a) wrong not to have overturned

Mr Davis submitted in summary that (i) Foskett J was wrong to find that the ability of the Court to receive further evidence on a re-hearing was “largely unconstrained” ([65]); (ii) Foskett J failed to have proper regard to the requirements of CPR PD 7A 8.2 which requires a party applying for an extension of time to put forward evidence of “all the circumstances relied upon” and “a full explanation as to why the claim has not been served”; (iii) Foskett J failed to have regard to the principles of Ladd v Marshall (supra) when allowing in the new evidence; and (iv) in any event, Foskett J failed to give adequate scrutiny to the Claimant’s new evidence (i.e. Wainwright III) which failed to give an adequate explanation for the delays.

A key finding by Foskett J was that Master Cook erred in refusing an adjournment and denying himself the opportunity to see the Claimant’s further evidence that could have made a difference to the outcome of the hearing (i.e. Wainwright III) [81].

Master Cook’s judgment is silent as to the basis upon which he refused the Claimant’s application for an adjournment; and there is no transcript or note of any reasons which he might have given for refusing the adjournment.

Foskett J noted that it was agreed that the Claimant made an application before Master Cook for an adjournment in order to file further evidence. He commented that he did not know what precisely was said in support of the application but understood that it was resisted by the Defendants and refused by Master Cook. Foskett J continued: “I imagine that the Master felt he could deal with the issue on the basis of the evidence before him” [49].

Foskett J held that Master Cook erred in refusing an adjournment and denying himself the opportunity to see the Claimant’s further material that could have made a difference to the outcome of the hearing (i.e. Wainwright III) ([81]). Foskett J’s reasoning was twofold. First, there was nothing to suggest that Master Cook had been reminded that the nature of the hearing before him was that of a rehearing, not merely a review ([72]). Second, the Master’s decision to refuse an adjournment cannot, in the circumstances, be characterised as merely a ‘case management’ decision as submitted, but it went to the heart of the exercise the Master was called upon to perform [72].

I am not persuaded that Foskett J’s latter reason provided a sufficient basis for reversing the Master’s decision to refuse an adjournment. Master Cook took what was on any view a ‘case management’ decision well within the purview of his general case management powers.

However, in my view, there is force in Foskett J’s first reason, namely that Master Cook approached the hearing on 12^th July 2017 on the basis that it was a (mere) review not a rehearing. Master Cook had been encouraged to this view by the Defendants’ skeleton argument dated 11^th July 2017 which submitted in terms: “The review of the applications to extend time for service of the claim form is a review of the existing evidence” (see above). It seems clear that Master Cook approached the task before him on this basis: in paragraph [16] of his judgment, Master Cook spoke in terms of carrying “a review” of the Claimant’s application(s) for an adjournment. He made no reference to Wainwright

In my view, Foskett J was correct to hold that, if and in so far as Master Cook approached the hearing before him as a review rather than a rehearing, Master Cook was in error. Foskett J appropriately cited (at [62]) the following passage from paragraph [33] of Dyson LJ’s judgment in Hashtroodi in which Dyson LJ made it clear that an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing not a mere review:

On this basis, Foskett J was correct to conclude that Master Cook had misdirected himself as to the nature of the hearing before him; and it was, therefore, open to Foskett J to remake the relevant decisions determined by Master Cook, including the question of admitting further evidence from the Claimant.

When turning to the question of the admission of further evidence, Foskett J cited Dupont (supra) as regards the nature of a rehearing on appeal (see above). In particular, as regards the power to admit fresh evidence under Rule 52.11(2) applying equally to appeals by way of review or rehearing (Dupont at [96]).

Foskett J continued:

As Foskett J pointed out, in remaking Master Cooke’s decision on admitting further evidence, the consideration he was required to give on appeal was in the form of a rehearing of a decision that itself ought to have been by way of rehearing of the issue that was first resolved on a "without notice" basis. Therefore, the particular considerations as to the admission of fresh evidence on appeal under CPR 52.11 and Ladd v. Marshall identified by May LJ in Dupont (supra) do not arise.

Foskett J was entitled to exercise the discretion to admit further evidence afresh, unconstrained by the decision below. He concluded that, in all the circumstances of the case, it would be appropriate to admit Wainwright III. His reasons included the fact that the present case concerns the interests of a young disabled child (seeparagraphs [64] and [73]). Whilst the nature of the subject claim is relevant by way of general background, the requirement to deal with cases “justly” in accordance with the overriding objective requires a necessarily objective and even-handed approach. The stronger and more deserving the claimant’s claim, the more important the defendant’s limitation defence (Cecil v. Bayat (supra) at [55]). The courts are required to adopt a strict approach, even though the consequences appear to be harsh in individual cases (Anderton v. Clwyd County Council (No.2) [2002] 1 WLR 3174 at [2]). The admission of further evidence had to be considered on its merits and in the light of the provisions of PD7A (see further below).

However, having made these observations, I am not persuaded that there are sufficient grounds for interfering with Foskett J’s exercise of the discretion to admit fresh evidence.

I turn, finally, to the substantive issues for determination before Foskett J as regards the first and second extensions on the basis that he was entitled to admit Wainwright III.

Foskett J held that Master Cook was right to grant both extensions of time on 25^th September 2015 and 17^th October 2017. Foskett J said that he would have come to the same conclusion as Master Cook as regards the first extension on the material before him [83]. And whilst the information given in the Claimant’s second application was "sparse" [73], the evidence in Wainwright III would have made good any deficiency in either the first or second application [83].

Foskett J held that Master Cook was right to grant the first extension of time on 25^th September 2015 and he would have come to the same conclusion as Master Cook as regards the first extension on the material before him [83].

In my view, Foskett J was right to uphold Master Cook’s first extension of time on the basis of the material originally filed by the Claimant. The Claimant’s first application was adequately supported by Wainwright I, paragraphs 35 and 36 of which explained that there had been difficulties in quantifying the Claimant’s claim and the RCJ Process

In my view, Foskett J erred in principle or misdirected himself when concluding that the Claimant had justified the second extension by serving Wainwright III for the following reasons.

First, Foskett J was wrong to place weight, let alone considerable weight, on the fact that the Defendants had not responded to the Claimant’s initial communications and to suggest that “all” the Claimant’s preparations had been hampered by the Defendants’ failure to respond to any of the correspondence from the Claimant’s solicitors (see paragraphs [80] and [82]). It is far from clear that it did. In any event, the co-operation of foreign defendants is not necessarily always to be expected as a matter of course. Indeed, the lack of response from a foreign defendant may make it all the more important for a claimant to consider obtaining early foreign law advice. Leigh Day did not take this precaution.

In the present case, there was unchallenged evidence from Ms Rachel Moore of Kennedys Law LLP that the First Defendant had been expressly advised by their insurers, the Oman Insurance Company, not to respond to the Claimant’s initial letter of claim dated 23^rd January 2014 but to pass it and any further correspondence to insurers unanswered for their attention. This the First Defendant duly did - and subsequently received legal advice from their corporate UAE lawyers, Al Jaziri & Associates, that they should not respond to the letter of claim because the Claimant’s solicitors had not provided a notarised and attested Power of Attorney showing their authority to act on behalf of the Claimant as generally required under UAE law. The First Defendant then duly passed this advice to their insurers. In the light of this advice, none of the First to Sixth Defendants responded substantively to the Claimant until, following service of the Claimant’s proceedings on 8^th February 2017, the First Defendant subsequently instructed Kennedys Law LLP on 6^th April 2017.

Second, whilst he was right to hold that Master Cook was entitled to grant the first extension (see above), Foskett J failed to bear sufficiently in mind the fact that the

Third, as emphasised in Hoddinnott at paragraph [55] (supra), it is important that the claimant’s evidence in support of an extension is “scrutinised with care”. In my view, the Judge did not scrutinise or pay sufficient regard to the following facts and matters as they emerge from the evidence, including Wainwright III, as regards the delays that ensued after the expiry of the limitation period.

The following points are pertinent: (i) Ms Wainwright admitted that, following the issue of proceedings in the present case (on 5^th July 2015), she turned to other cases which she said required her urgent attention. (ii) She was unable to recall precisely when she first contacted the Foreign Process Service (“FPS”) regarding the procedure for service in the present case but said it was between 11^th July and 21^st September 2015, i.e. during a 2 ½ month period. (iii) This is, perhaps surprising given that the Claimant’s solicitors did not know at this stage how long service in UAE would take and had already had to lodge an application for an extension on 8^th July 2016 which would mean that they would have to effect service out of time.

This was followed by a series of further significant and unexplained delays on the part of the Claimant. (i) First, the Court documents were not taken to the FPS until December 2015, i.e. 5 months after issue of proceedings. (ii) Second, the further expert, Dr McHugo (whose views were said to be necessary in order to decide whether to proceed against “all Defendants”) was not instructed until April 2016, i.e. 9 months after issue of proceedings. Ms Wainwright admits that the delay in her instructing Dr McHugo was because of “urgent work that was necessary on other cases”. (iii) Third, the Court documents were not legalised at the UAE Embassy until July 2016, i.e. 12 months after issue of proceedings, (the Foreign & Commonwealth Office (“FCO”) had said in December 2015 that legalisation was necessary but subsequently said in August 2016 that this was not necessary). (iv) Fourth, there was then a series of further delays during August and September 2016 involving preparation of the packs of documents, payment of the FCO fees, and the lodging of the correct documents including N224 for each claim.

It was in these circumstances that in October 2016, the Claimant sought a further extension, i.e. 14 months after issue of proceedings. Proceedings then did not begin to be served upon the Defendants until early February 2017, i.e. some 19 months after issue of proceedings.

Thus, post-issue of proceedings, there were lengthy unexplained delays by the Claimant, amounting to some 12-14 months, notwithstanding that the limitation period had already expired and that they should have been progressing the claim as quickly as possible.

The Claimant contended that Master Cook erred in failing to deal with the Defendants’ application for an extension of time under CPR 11(1) to cure their late service of their Acknowledgments of Service prior to determining the Defendants’ application to set aside the Claimant’s second application for an extension.

In my view, Foskett J was right, for the reasons he gave, to hold that relief from sanctions should have been granted and thus there was no jurisdictional bar to the Defendants’ application to set aside the Claimant’s second application for an extension. Summary

In my view, the overall position, on proper analysis, can be summarised as follows:

First, the Judge placed undue emphasis on the fact that the Defendants had been unresponsive in circumstances where the Claimant’s solicitors had not taken the elementary precaution of taking expert advice as to UAE law.

Second, the Judge failed sufficiently to take account of (a) the very significant periods of delay both pre-issue but particularly post-issue, (b) the lack of any or any satisfactory explanation for these periods of delay, and (c) the fact that the majority of the delays were attributable to the failures, inaction and general lack of urgency on the part of the Claimant’s solicitors (as is apparent from the Claimant’s own evidence, in particular Wainwright III).

Third, the Judge also failed to pay sufficient regard to the expiry of limitation period and the fact that that the Claimant had chosen to issue the proceedings at the last moment.

In my view, for the above reasons, this appeal should be allowed and service of the proceedings against the First to Sixth Defendants should be set aside.

I agree that the appeal should be allowed, and service of the proceedings on the First to Sixth Defendants be set aside. I consider that Master Cook was justified on 12 July 2017 in setting aside his second order extending time for service of the proceedings out of the jurisdiction, and that Foskett J should not have reversed Master Cook’s order to that effect.

I do not need to add to what has been said by Haddon-Cave LJ about the nature of the judicial process that was involved at each of those hearings.

In my judgment Foskett J was clearly wrong to rely, as he did at paragraph 82 of his judgment, on the Claimant’s preparations having been “hampered by the failure of the Defendants to respond to any of the correspondence from the Claimant’s solicitors”. In the case of a Defendant or prospective Defendant who or which is within the jurisdiction of the court, that may be a legitimate attitude. The regime of Pre-Action Protocols encourages co-operation between potential or prospective parties to litigation, and solicitors acting for prospective or actual Claimants may be entitled to expect a constructive response from prospective Defendants or their insurers or legal representatives. But if the prospective or actual Defendant is not within the jurisdiction, those acting for a Claimant cannot assume that their approaches to a foreign person or entity will receive any particular response, let alone a constructive response. From the point of view of the foreign party, there is, or at least there may be, no reason to respond.

I agree that the appeal should be allowed for the reasons given in both judgments.