DDM v Al-Zahra (PVT) Hospital & Ors

At the commencement of the hearing of this appeal, I made an anonymity order because the case relates to the interests of a 5-year old girl (the child of DDM) who was born in the UK in August 2012 with Di George Syndrome and Tetralogy of Fallot with absent pulmonary valve. This condition, which gives rise to very serious lifelong disabilities, arose from a rare congenital abnormality. The disabilities are such that she requires constant care and supervision.

Given the nature of the claim (see paragraph 4 below), the Claimant is DDM, the child’s mother, not the child acting through a Litigation Friend.

The anonymity order was made without objection from the member of the media present, but I indicated that it was always subject to review. I would, however, have thought that this is pre-eminently a case for anonymity.

The case that the Claimant wishes to advance against those responsible for her daughter’s ante-natal care is that fetal abnormalities consistent with the condition mentioned above should have been identified on ultrasound scans taken early enough in the pregnancy such that, when properly and fully advised about the disabilities that would be exhibited by the baby, she would probably have opted for a termination. It is what is often called a “wrongful birth” claim.

The procedural issues to which the appeal gives rise have arisen from the complication that the relevant ante-natal care was undertaken at the Al-Zahra Hospital, a private hospital, in Sharjah in the United Arab Emirates (the ‘UAE’). The Claimant was resident there at the material time because her husband was working there. In the events which happened, she had returned to the UK for the child’s birth.

As will emerge, there were delays in effecting service of the Claim Form and associated documents on the Defendants and two extensions of the period to achieve this were granted by Master Cook. When the Defendants were eventually served, they argued that the extension orders should not have been granted. The Master agreed in respect of the second extension order he had granted.

There is an issue about the extent to which some of the material put before me can properly be taken into account on the appeal, in particular evidence given in the witness statement of Ms Nicola Wainwright, the partner in Leigh Day acting on behalf of the Claimant, dated 1 August 2017. I will return to that issue below (see paragraphs 62-65), but I think it is more useful at this stage to give as full a history of material events as is possible on the basis of the present evidence before deciding whether any part of that evidence should be excluded from consideration on the central issue with which this appeal is concerned.

By way of brief introduction, the appeal is from a decision of Master Cook made on 12 July 2017 whereby he set aside an earlier order he had made extending the time for service of the Claim Form. The net effect of this decision was that the action came to an end. For it to be resurrected, it would require (i) fresh proceedings (which, on any view, would be outside the relevant limitation period) and (ii), if English law applies (as to which see paragraphs 40-41 below), the exercise of the discretion afforded by section 33 to be applied in favour of permitting the claim to proceed. The outcome of any such application would be uncertain. The alternative would, in the circumstances set out below, be a claim for professional negligence against the Claimant’s solicitors in which it is unlikely that she would recover full compensation based upon the child’s needs.

If either of those foregoing consequences must follow from the proper consideration of the appeal then, of course, it must, though neither is an attractive proposition when the effective, lifetime interests of a seriously disabled child are in issue. As already indicated, in an action of this nature, the claim is the claim of the child’s mother and, accordingly, the limitation issues arise in their full force whereas, if the claim had been the child’s, they would not do so if English law applied to the claim.

There is a potential issue about when, if English law applies, the limitation period commenced. Was it when the (alleged) negligent failure to identify the fetal abnormalities occurred or when the Claimant’s child was born? I propose adopting the working assumption that it was upon birth. It makes little difference to the outcome of the appeal.

The Claimant’s solicitors were first instructed on 20 June 2013. Various preliminary investigations and inquiries were carried out which led to the view that “there did seem to be a claim worth investigating”, as Ms Wainwright said in the witness statement to which I have referred. On 5 November 2013, the Claimant entered a Conditional Fee Agreement with Leigh Day. Junior Counsel, Mr Richard Mumford, was instructed to prepare a formal Advice on jurisdiction and instructions were sent to him on 22 November 2013. He advised on jurisdiction on 19 December 2013 to the effect that it was arguable that the English and Welsh jurisdiction was the appropriate jurisdiction, but he advised obtaining further information, in particular, documentary evidence of the relationship between the Claimant and the proposed defendants in the UAE.

In her witness statement, Ms Wainwright said this:

“On 23 January 2014, I wrote to the First Defendant, Al Zahra Hospital, notifying them of the potential claim against them and requesting disclosure of [the Claimant’s] medical records and other relevant documentation. I also requested the contact details for the other potential Defendants – the individual doctors who had treated [the Claimant] – and asked them to confirm with whom liability lay for any negligence and for their insurance details. This letter was faxed to the Legal Department at Al-Zahra Hospital and we received a response saying the full fax had not been received and so it was faxed again on 27 January 2014. However, we received no further response and on 10 and 28 February 2014, I sent letters chasing the First Defendant for a response.”

The letter of 23 January 2014 (addressed to the “Legal Department” at the hospital) gave clear details of the likely allegations and named the Third to the Sixth Defendants as individuals responsible for the ante-natal care.

Thereafter the UK medical records of the Claimant and her daughter were obtained and, in the absence of any response to the foregoing correspondence, the following took place, as described by Ms Wainwright:

“On 30 May 2014, having still not received a response from the First Defendant, my secretary telephoned Al-Zahra Hospital and was put through to their Patient Liaison Department. She was told to resend our previous correspondence. We faxed a further letter chasing a response to our initial letter of 23 January 2014 the same day.

On 30 July 2014 we chased the First Defendant again, both by telephone and email, having been provided with an email address when we called. I sent a further letter to this email address on 19 August 2014.”

There was no response to any of those communications. Between then and the next series of attempts by the Claimant’s solicitors to make contact with the relevant parties in the UAE, a supportive opinion from a Paediatric Cardiologist was obtained who suggested that an opinion from an expert in fetal medicine should be obtained and a suitable expert was identified. The next attempts to make contact with the hospital and others were described by Ms Wainwright as follows:

“… on 22 December 2014 I sent letters addressed to the individual doctors whose names appeared on the scan reports [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 care of Al-Zahra Hospital. I asked them to provide me with details of their insurers, to confirm whether they held anyone/any other body liable for any negligence in [the Claimant’s] care and to provide us with copy records and a copy of the contract under which [she] was treated. We received no response. I sent further copies of my letter to The Fourth, Fifth, Sixth Defendants on 20 April 2015. I also wrote to the Seventh Defendant on the same date.”

The Claimant’s solicitors had thus had no response from any one of the individuals to whom letters had been addressed, nor any response from the hospital, in the 15 months or so they had been attempting to make contact. None of the medical records, scans or other imaging they had been seeking had been provided. All that they had were copies of two scans the Claimant underwent in the UAE in May and June 2012 and the reports of the other scans she underwent (all documents that she had personally).

At that stage they had received no explanation for such lack of response, but they were entitled to assume that the hospital (where the individuals worked at the material time) had received the various communications that had been sent. The explanation did not come until the witness statement of Ms Rachel Moore, a partner at Kennedys, dated 20 April 2017 was received. It was prepared in the context of another matter (see below), but it demonstrates why there had been no response. Kennedys were first instructed on 6 April 2017. The material part of the statement appeared in paragraph 20 as follows:

“a.

The Claimant's solicitors engaged in pre-action correspondence with the First and Fourth Defendants starting with an initial letter of claim to the First Defendant Hospital dated 23 January 2014. An initial letter to the Fourth Defendant dated 22 December 2014 was not received until 21 March 2015.

b.

The First Defendant holds an insurance policy with Oman Insurance Company … concerning the period 27 July 2013 to 26 July 2014 and providing cover for medical malpractice including the actions of any doctors, technicians, nurses and visiting doctors.

c.

The First Defendant, on behalf of both itself and its doctors therefore notified their insurers, Osman Insurance Company. The first notification of the claim to insurers was on 27 January 2014.

d.

The Claimant's solicitors chased a response by email dated 10 February 2014. The First Defendant's in-house lawyer, Mr Metwally, sent a copy of the Claimant's solicitors' email dated 10 February 2014 to Oman Insurance Company on 11 February 2014 and asked for guidance on a response.

e.

On 13 February 2014 Oman Insurance Company advised the hospital not to respond but to pass any further correspondence to insurers unanswered for their attention. On 24 February 2014, the First Defendant Hospital also received advice not to respond to the letter of claim from its corporate lawyers, Al Jaziri & Associates, as the Claimant's solicitors had not provided a notarised and attested Power of Attorney showing their authority to act on behalf of the Claimant, which is generally required under UAE law.

f.

The First Defendant passed the correspondence to its insurers. Having been advised not to respond by insurers, save for the First Defendant’s administration team asking for a full copy of an incomplete faxed letter to be sent in January 2014, and the Patient Liaison Department receiving a telephone call from the Claimant’s solicitors in July 2014, none of the First, Second, Third, Fourth, Fifth or Sixth Defendants is believed to have had contact with the Claimant’s solicitors.”

The failure even to acknowledge receipt of the various communications sent to the hospital was as a result of advice from their insurers and, in due course, their corporate lawyers. The rationale appears to have been, at least so far as the advice from the corporate lawyers was concerned, that there was no “notarised and attested Power of Attorney showing [Leigh Day’s] authority to act on behalf of the Claimant”, something “which is generally required under UAE law.” It is not entirely clear whether that was also the position of the insurers, but it does appear that the hospital itself did react properly to the communications from the Claimant’s solicitors and, perhaps, assumed that the insurers would acknowledge those communications. That would, of course, have been the anticipation of all parties if an insurer in the UK was the recipient of communications such as these from an insured.

The only development that resulted in some action on behalf of the Defendants was, according to Ms Moore’s witness statement, when the proceedings had been served on the hospital, which appears to have occurred around 8 February 2017.

I will return to the position adopted on behalf of the 1-6 Defendants thereafter below, but it is necessary to return to what the Claimant’s solicitors had been doing in the meantime.

Ms Wainwright has explained in her witness statement why it took so long to get to a conference with Counsel in June 2015, armed with sufficient expert material, and her initial attempts to obtain the assistance of a UAE solicitor. Part of the advice she was seeking from that solicitor related to what to do about the lack of response from the hospital. By the time that a decision to issue proceedings was taken, no such advice was forthcoming. Whilst the view was taken that the limitation period would expire on 6 August 2015, there was a thought that the Defendants, once engaged in the litigation, might argue that the limitation period ran from the failure to note the suspicious scan evidence. Since 12 July 2012 was the day the Claimant was told of her daughter’s condition (and thus acquired the relevant “knowledge” within section 14 of the Limitation Act), that was considered to be the date before which the proceedings needed to be issued.

I should add that it emerged at the conference that two of the scans had been carried at the International Radiology Centre in UAE (where the Claimant had been seen by Professor Zaki), not at the hospital, and that she also attended the University Hospital of Sharjah. In early July 2015 the Claimant’s solicitors wrote to the University of Sharjah requesting copies of their records and an early scan that the Claimant had undergone. They also wrote to Professor Zaki and the International Radiology Centre notifying them of the potential claim and requesting disclosure of the records they held.

Ms Wainwright said the following about the response of the University Hospital of Sharjah:

“Unlike Al Zahra Hospital, the University of Sharjah immediately responded to my request sending us a form they required [the Claimant] to complete and requesting photographic identification. [The Claimant] completed the form and I obtained [the Claimant’s] UAE medical insurance ID card, copies of which we provided to the University of Sharjah. They provided copy records on 5 July 2015.”

In order to cover the possibility that the individuals concerned in the ante-natal treatment bore personal liability, the Claimant’s solicitors issued the Claim Form against all potential parties. On 8 July 2015 the proceedings were issued in correct form with appropriate translations of the Claim Form and the Particulars of Claim. At the same time an Application Notice applying for permission to serve out of the jurisdiction, to extend time for filing the Schedule of Loss and medical report and to extend time for service of the Claim Form and Particulars of Claim was prepared.

The Claimant’s solicitors had been advised by the Foreign Process Section (‘FPS’) at the Royal Courts of Justice “that serving out of the jurisdiction in the UAE could take a considerable period of time – six to twelve months or more and that [they] should ask for an extension of time of 12 months to serve.”

The guidance provided on the relevant website in relation to how documents are processed overseas is as follows:

“Once you have paid the consular fee (Footnote: ¹), you will need to contact the Foreign Process Section who will advise you on how to submit the documents to them for service of process.

Once FPS has received and processed your documents, they will be forwarded to the FCO in London. Please allow 10 working days for the FCO to process your documents. The documents will then be sent to the relevant British Embassy/High Commission overseas. You should allow at least two weeks travel time for this to happen.

When the British embassy or high commission receives the documents, they will be passed to the host country’s Ministry of Foreign Affairs. You should allow 10 working days for this to happen. The host country’s Ministry of Foreign Affairs will arrange for service locally.

After the documents have been passed to the Ministry of Foreign Affairs the process is out of our hands. We cannot influence how quickly or whether the documents are served. We regret that we are not resourced to chase updates on your case.”

This procedure does not appear to commence until the consular fee is paid. It is clear that once the consular fee is paid and the documents are fed into the system outlined, the legal representatives of a claimant have no influence over how and when actual service of the documents is effected and “chasing” communications (at least with the FPS) would be futile. It is not clear on the evidence before me what other steps can be taken by a claimant’s solicitor to hasten this process (see paragraphs 76-80 below).

On 9 July 2015 the Claimant’s solicitors issued the Application Notice in support of the application to extend time for service, the notice being issued on a “without notice” basis. The Application Notice contained a full explanation of the nature of the case sought to be advanced and why it was suggested that the law of England and Wales should apply to the claim. The addresses of each of the Defendants was given with a view to service being effected at those addresses. The reasons given for the application to extend the time for service of the Claim Form, Particulars of Claim and supporting documents were as follows:

“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.”

The witness statement of Ms Wainwright dated 9 July 2015 did, however, contain the following passage after reference to the Particulars of Claim that were exhibited to the statement:

“It is the Claimant's case that the cardiac abnormalities are apparent on images on 27 May and 16 June 2012, images of which the Claimant has copies, and given the abnormalities shown on these scans it is likely that the same abnormalities would have been apparent on the previous scans taken from 18 weeks onwards. However, I have not been able to obtain images for those scans from Al-Zahra Hospital as all correspondence requesting copy records has gone unanswered.”

The reference to the lack of response was repeated in the following passage:

“It is impossible for me to advise the Court of the matters that the defendants are likely to raise in defence to this claim or application because despite attempts to contact the First and Third to Eight Defendants I have received no response from them.”

Master Cook granted the extension sought by an order made on 10 July 2015.

It has been the contention of Mr Andrew Davis, for 1-6 Defendants, that an extension should not have been granted on this evidence. Master Cook rejected that argument when it was advanced before him by Mr Davis. I will return to it below (see paragraphs 70 and 83).

Ms Wainwright indicates in her witness statement the various steps taken thereafter. They included having the order made originally by Master Cook varied to provide that the Defendants should have 22 days to respond to the claim. This had been suggested by the FPS. The amended Order was sealed on 25 September 2015. For understandable reasons the Claimant’s solicitors did not wish to proceed against all eight Defendants if it could be avoided and they hoped to narrow the number of Defendants before service was effected “either by obtaining further advice and information on who was liable for any negligence and who was insured and/or obtaining further expert opinion on exactly when [the Claimant’s daughter’s] abnormalities could and should have been identified.” It was thought that the views of an expert sonographer/radiologist would assist. Although a suitable expert was identified in December 2015, she was not instructed until April 2016. Her report became available in June 2016.

In the meantime the Claimant’s solicitors had been in contact with the FPS that confirmed that a consular fee of £130 was required in respect of each Defendant. The FCO also advised that the documents should be “legalised” first and the UAE Embassy should be contacted to see if there was one fee of £75 or £75 per document. It appears that the Claimant’s solicitors did not establish the need to legalise the documents proposed to be served until June 2016 and thereafter for several months there was some “toing and froing” between the FCO and the UAE Embassy about precisely the form in which the documents should be prepared.

The Claimant’s solicitors thought that all was in order by the end of September 2016 and they attended the FPS again with the documents they wished to serve on 3 October 2016. However, the advice was that the Response Pack required amending to reflect the fact that the Defendants had 22 days to respond to the claim. It was suggested a further extension of time for service of proceedings be sought because service was likely to take 8 months. Given that the existing order provided for service to take place by December 2016, the suggestion was that a further 6 months be sought.

On 4 October 2016 a further (without notice) application to extend time for service of the proceedings was made. The Notice of Application gave the following as the basis for the application:

“Unfortunately, there have been delays in arranging for service of the documents although the papers are now ready to serve the [FPS] has indicated it is likely to take 8 months to effect service in the UAE and therefore we are requesting a further extension of time for service …

This Application is made without notice because the Defendants are all based in the UAE and to date have not responded to any correspondence.”

On 17 October 2016 Master Cook made the order requested, extending the time for service until 10 June 2017. The order was made “on the papers”.

By November 2016 the papers were all ready for service and the FPS accepted that all was in order. The fees were paid and the procedure outlined in paragraph 26 above was presumably implemented. As indicated in paragraph 19 above and paragraph 40 below, service of the documents on 1 Defendant was effected in February 2017 and so too was service on 2 Defendant.

I will return to the relevant aspects of what occurred in the period up until the arrival on the scene of Kennedys below, but I should record briefly what has emerged during their involvement and what steps were taken on behalf of the 1-6 Defendants.

Ms Moore’s witness statement (see paragraph 17 above) indicated the position taken by those in the UAE following service of the proceedings in February 2017 as follows:

“g.

Upon receipt of the proceedings on 8 February 2017, the First Defendant again sought independent legal advice in the UAE from Al Jaziri & Associates. On 5 March 2017 the First Defendant was advised to instruct lawyers in the UK to challenge jurisdiction.

h.

The First Defendant referred the proceedings to its insurers on 18 March 2017. The First Defendant itself was not aware of any urgency in responding to the proceedings under English procedure.

i.

Oman Insurance Company eventually confirmed that the insurance cover is not available because the claim has been brought outside of the jurisdiction i.e. outside of the UAE. This was confirmed by way of letter dated 2 April 2017 from the Oman Insurance Company to the First Defendant. The First to Sixth Defendants are therefore uninsured against this claim ….

k.

As a result, the First Defendant was advised to seek legal advice from a UK lawyer. The Oman Insurance Company recommended that the First Defendant approach Kennedys Dubai, which they did on 6 April 2017, who in turn approached me in the London office on the same day.”

Her witness statement indicates how and in what circumstances her firm received instructions and from which parties. In short, she was instructed to challenge the jurisdiction of the English court to deal with the case. Acknowledgements of Service (challenging the jurisdiction) were filed on 7 April 2017 on behalf of the First, Second, Third and Fourth Defendants once Kennedys had clarified by which defendants they were instructed at that stage. On 18 April 2017, Kennedys received confirmation that the Fifth and Sixth Defendants had in fact been employed by the First Defendant at the material time and their instructions were to act on behalf of the Fifth and Sixth Defendants as well. Although the Fifth and Sixth Defendants had not actually received the proceedings Kennedys filed an Acknowledgement of Service (challenging the jurisdiction) on 20 April 2017 to protect their position.

Ms Moore indicated that her firm was unaware of the precise date of service on the various defendants and recognised that the Acknowledgments of Service challenging jurisdiction may “arguably” have been filed late. To cover that position, she issued an application for relief from sanctions. She submitted in her witness statement that if there was any breach it was not serious, that there was no prejudice to the Claimant and that “there [were] good reasons for the delay”, those reasons being those set out in sub-paragraphs (a) to (j) of paragraph 20 of her statement (see paragraphs 17 and 40 above). The application also sought the setting aside of the extensions of time for service of the proceedings, the basis of the application being put this way:

“The First to Sixth Defendants have applied to set aside the extensions for time for service of the proceedings. … at present I do not yet know why the Claimant sought extensions of time for the service of proceedings – first until December 2016 (an extension of just under a year) and then a further extension until June 2017.

We have not been provided with copies of Claimant’s applications or evidence which would have been required to seek the extensions of time for service of proceedings. We do not therefore know the reasons put before the Court or the manner in which the applications were put. Having regard to the proper approach to such applications (for example as recently summarised in Foran v Secret Surgery Ltd & Ors … the extensions seem unusually long and the First to Sixth Defendants’ position in that regard is reserved.

We therefore seek Orders that within 14 days the Claimant serves a copy of the applications and all evidence and submissions put before the Court in support of the extension of time applications; and that my clients have permission to file and serve further evidence in support of this application, if so advised, following sight of those documents – within, say a further 21 days.”

The Application Notice sought a 3-hour hearing before Master Cook. It will be observed that the order sought concerning the provision of the “Claimant’s applications or evidence” in support of the extension applications was “within 14 days” of the order being made, an order presumably being sought at the hearing before Master Cook.

A hearing date for 12 July 2017 was set before Master Cook. I am not entirely sure what time had been provided for the hearing, but I was told that it lasted the morning and that Master Cook gave an ex tempore judgment at 2 pm.

In addition to those matters the subject of the Application Notice issued on behalf of the 1-6 Defendants, the Claimant’s solicitors issued an application for permission to serve proceedings on the Defendants out of the jurisdiction “on a fresh basis and dispense with re-service.” Essentially, it sought to correct the ground for the application for permission to serve out of the jurisdiction, it having been recognised that paragraph 3.1(3) of PD6B (which had been relied upon originally) was the incorrect “gateway” and that paragraph 3.1(9)(a) was the correct one. I will say nothing more about this because, in the event, the Master did not consider the application, but the fact that a witness statement in support of the application dated 4 July 2017 was filed should be noted. Ms Wainwright sought to answer some of the points made by Ms Moore in her witness statement. One of the issues was the jurisdiction issue and the argument advanced by 1-6 Defendants that UAE law should apply and/or that England should not be the appropriate forum.

Although not said specifically in relation to the application to set aside the extension orders, Ms Wainwright’s statement referred to the efforts made to contact the defendants prior to issuing the proceedings and to what Ms Moore said in her witness statement about this. She asserted, with clear justification, that “the Defendants chose to ignore these letters.” They did so, it appears, on the basis of advice from, or the actions of, their insurers and/or lawyers.

On 3 July 2017 the Claimant’s solicitors had provided Kennedys with copies of the applications for permission to serve out of the jurisdiction and for extensions of time for service, the evidence in support at the time of making the applications and the orders made by Master Cook.

There was some doubt on the Claimant’s side prior to the hearing before the Master about precisely what issues would be dealt with. Ms Wainwright had said in her witness statement of 4 July 2017 that it was unclear whether 1-6 Defendants intended to pursue the application to set aside the extension orders. Nothing was said by or on behalf of the 1-6 Defendants until the day before the hearing before the Master to clarify the position in that regard. This was a matter for discussion between Counsel (Mr Davis for the Defendants and Mr Richard Booth QC for the Claimant) the day before the hearing when there was a general discussion about whether there was time to deal with all the matters in issue. Mr Booth, who drafted the Skeleton Argument in support of the Application for Permission to Appeal against the Master’s order, said that it was not until he received Mr Davis’ Skeleton Argument late in that afternoon that it was appreciated that the 1-6 Defendants were pursuing vigorously the applications to set aside the extension orders.

It is agreed that at the hearing before the Master an application was made for an adjournment of the application to set aside extension orders in order to give the Claimant an adequate opportunity to file evidence in response to the application and/or to deal adequately with the points which had been raised for the first time in Mr Davis’ Skeleton Argument. I do not know precisely what was said in support of the adjournment application, but I understand that Mr Davis opposed it and the Master refused it. I imagine that the Master felt he could deal with the issue on the basis of the evidential material before him.

I have been told, and I do not think it is disputed by Mr Davis, that the Master invited argument on this substantive issue before considering any of the other matters because, in his view, the outcome could be dispositive of the whole claim. One argument on behalf of the Claimant is that he had no jurisdiction to do this without having first determined whether to accede to the application made on behalf of the Defendants to extend time for lodging the Acknowledgements of Service (see paragraph 71 below).

I will return to the Master’s decision below, but it would be helpful to set out the relevant rules concerning this issue and make reference to one or two of the authorities.

The relevant rules are CPR Part 7.5(2) and 7.6, supported by Practice Direction 7A.

7.5 (2) provides as follows:

“Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue.”

7.6 provides as follows:

“(1)

The claimant may apply for an order extending the period for compliance with rule 7.5.

(2)

The general rule is that an application to extend the time for compliance with rule 7.5 must be made –

(a)

within the period specified by rule 7.5; or

(b)

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

(3)

If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –

(a)

the court has failed to serve the claim form; or

(b)

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

(c)

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

(4)

An application for an order extending the time for compliance with rule 7.5 –

(a)

must be supported by evidence; and

(b)

may be made without notice.”

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

“8.1

An application under rule 7.6 (for an extension of time for serving a claim form under rule 7.6(1)) must be made in accordance with Part 23 and supported by evidence.

8.2

The evidence should state:

(1)

all the circumstances relied on,

(2)

the date of issue of the claim,

(3)

the expiry date of any rule 7.6 extension, and

(4)

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

(For information regarding (1) written evidence see Part 32 and Practice Direction 32 and (2) service of the claim form see Part 6 and Practice Directions 6A and 6B.)”

On the issue of whether the Master had jurisdiction to hear the application to set aside the extension orders, CPR 11 is the governing rule. The relevant part is as follows:

“(1)

A defendant who wishes to –

(a)

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

(b)

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.

(2)

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

(3)

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.

(4)

An application under this rule must –

(a)

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

(b)

be supported by evidence.”

In Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806, the Court of Appeal confirmed the importance of the need for a defendant who wished to challenge an order granting an extension of time for serving the Claim Form (a) to file an acknowledgement of service and (b) to make an application, supported by evidence, to set aside the extension order within 14 days of filing the acknowledgment of service. A failure to do so would have the effect of the defendant being treated as having accepted that the court had jurisdiction to try the claim (in the sense of the “court’s power or authority to try a claim”: [23]).

In relation to the factors justifying an order extending the time for service of the Claim Form to be justified, in Hashtroodi v Hancock [2004] 1 WLR 3206, the Court of Appeal held that “the discretion to grant an extension of time under CPR 7.6(2) should be exercised having regard to the overriding objective” ([23]) and that because the overriding objective requires the court to deal with cases justly, “it is not possible to deal with an application for an extension of time under CPR 7.6(2) justly without knowing why the claimant has failed to serve the claim form within the specified period” ([18]). The court offered this general guidance in [19]:

“Whereas under the previous law, a plaintiff who was unable to show a good reason for not serving in time failed at the threshold, under the CPR, a more calibrated approach is to be adopted. If there is a very good reason for the failure to serve the claim form within the specified period, then an extension of time will usually be granted. Thus, where the court has been unable to serve the claim form or the claimant has taken all reasonable steps to serve the claim form, but has been unable to do so (the CPR 7.6(3) conditions), the court will have no difficulty in deciding that there is a very good reason for the failure to serve. The weaker the reason, the more likely the court will be to refuse to grant the extension.”

Simply overlooking the need for service will usually be a strong reason for not extending time ([20]), and the expiration of the limitation period is a relevant factor of some considerable importance. In Hoddinott, it was said that –

“Where there is doubt as to whether a claim has become time-barred since the date on which the claim form was issued, it is not appropriate to seek to resolve the issue on an application to extend the time for service or an application to set aside an extension of time for service. In such a case, the approach of the court should be to regard the fact that an extension of time might "disturb a defendant who is by now entitled to assume that his rights can no longer be disputed" as a matter of "considerable importance" when deciding whether or not to grant an extension of time for service: see Hashtroodi para 18.”

In Hoddinott, the court emphasised the requirements of r.7.6(3) and the relevance or otherwise of the expiry of the limitation period in the following way at [55]:

“If an application for an extension of time is made after the end of the 4 months' period, the application must be dismissed unless the 3 conditions specified in CPR 7.6(3) are satisfied. In such a case, the fact that the claim is clearly not yet time-barred is irrelevant. It would be strange if, where an application is made before the end of the 4 months' period, the fact that the claim is clearly not time-barred means that the court must grant the extension of time. In our view, the better view is that, where the application is made before the end of the 4 months' period, the fact that the claim is clearly not yet time-barred is a relevant consideration.”

I will return to the significance of these matters after considering briefly some procedural aspects that have arisen.

The nature of a hearing to set aside an extension order and an appeal from a decision made at such a hearing were considered in Hashtroodi at [33]:

“It is common ground that in the events which have occurred here, the appeal to this court is a rehearing, rather than a review of the decision of [the deputy master who considered the application to set aside the extension order of the Master]. This is because … an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing of the issue, and not a review of the decision that it is sought to set aside; but, in the present case, the deputy master conducted the application as if it were a review of the decision of [the Master].”

It follows that, to the extent that it is relevant and material, the hearing before Master Cook on 12 July 2017 was a rehearing of the issue whether to grant the extensions of time, not a review of his earlier decisions, and the appeal to me is (unusually) itself a rehearing of the application considered by Master Cook on 12 July 2017, albeit giving Master Cook’s decision due weight (see paragraph 64 below).

In the situation that thus arises, the nature of the hearing before me has been described thus by the Court of Appeal in E I Dupont de Nemours & Co v S T Dupont [2006] 1 WLR 2793 at [96]:

“Submissions to the effect that an appeal hearing should be a rehearing are often motivated by the belief that only thus can sufficient reconsideration be given to elements of the decision of the lower court. In my judgment, this is largely unnecessary given the scope of a hearing by way of review under rule 52.11(1). Further the power to admit fresh evidence in rule 52.11(2) applies equally to a review or rehearing. The scope of an appeal by way of review, such as I have described, in my view means that the scope of a rehearing under rule 52.11(1)(b) will normally approximate to that of a rehearing “in the fullest sense of the word” such as Brooke LJ referred to in Tanfern's case [2000] 1 WLR 1311, para 31. On such a rehearing the court will hear the case again. It will if necessary hear evidence again and may well admit fresh evidence. It will reach a fresh decision unconstrained by the decision of the lower court, although it will give to the decision of the lower court the weight that it deserves. The circumstances in which an appeal court hearing an appeal from within the court system will decide to hold such a rehearing will be rare, not least because the appeal court has power under rule 52.10(2)(c) to order a new trial or hearing before the lower court ….”

In real terms, therefore, there appears to be little practical difference between the approach of the appellate court whether the exercise is a rehearing or merely a review. It does not appear that the ability of the appellate court to receive further evidence is constrained save, perhaps, to the extent that caution will always need to be shown to avoid “second bites at the cherry” when there is a clear requirement within the rules for the evidence to be in a particular form or to deal with a particular issue: cf. Sharab v Al-Saud [2009] EWCA Civ 353, [52]. But, as I have indicated (see paragraph 62 above), the consideration I must give to the appeal is 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. It does seem to me that if the power of the appellate court to receive further evidence on the issue is relatively unconstrained, so too must be the power of the tribunal hearing an application to set aside an extension order previously made. I use the expression “relatively unconstrained” deliberately: I do not consider that the provisions of the overriding objective permit a complete “free for all” in terms of new material, but ultimately the court must reach a just result and it may be advisable, particularly in a case such as the present where the interests of a young child are concerned, to receive the fresh material offered in the first instance and then, of course, to subject it to appropriate scrutiny to see what effect it has on the evidential basis for making the decision.

I will return to this when reviewing the Master’s decision.

As indicated above, the Master rejected the application on behalf of the Claimant for an adjournment to bring forward further evidence and his decision appears to have been based simply a review of the material upon which he based his earlier two decisions.

In relation to the decision made on 10 July 2015, the Master said this:

“… Mr Davis, makes a number of specific criticisms of the evidence in support of the first application for an extension of time. He submits that: no detailed chronology was given to the court; there was no history as to when the claimant’s solicitors had been instructed; there was no indication of the steps that had been taken to investigate the claim; there was no indication of the steps that had been taken to investigate a proper address for service on the defendants or the steps that had been taken to consider the issues of service in the UAE prior to issue; or what steps had been taken between letters of claim and issuing proceedings; or why it had been left until the very end of limitation to issue proceedings. He also pointed out that there was no suggestion that the claimant’s solicitors had ever taken any advice as to the applicable law in the UAE either as to limitation or procedure.

…

Whilst it may well be that a number of the points made by Mr Davis were not specifically addressed by [Ms Wainwright], I am satisfied that the material matters to which the court would have to have regard to was covered by her. It is clear to me that the witness statement set out sufficient of the history of the matter to enable the court to understand the cause of action, when the cause of action arose and the fact that jurisdiction was being based upon the allegation that damage had occurred within the jurisdiction of the Courts of England …

… In an ordinary case … where a claim form requires service out of the jurisdiction the extra two months given by the Civil Procedure Rules is generally deemed sufficient to deal with the added time and burden of achieving service out of the jurisdiction. However, there will be cases … where the six-month period is going to be insufficient.

The starting point it seems to me is that the claimant is entitled to the period provided by the Rules. It seems to me that in this case it was always known that an application would have to be made to extend that six month period and the application was made in time. The difficulty here arose as a result of the enquiry made to the Foreign Process Unit at this court which indicated that the UAE in common with a number of other jurisdictions experiences particular delay in achieving service. The information related by Miss Wainwright is that she was told it may take up to 12 months for service to be achieved. Certainly in my experience as a Master of the Queen’s Bench Division, that is precisely what I would expect from this particular jurisdiction and it is no doubt for that reason that on the papers I was prepared to accept that it would take a period of 12 months to effect proper service in the UAE. Therefore, in my judgment this was a case where the claimant should have the benefit of an extended period of time beyond the six months provided in the Rules.”

In relation to the extension given on 17 October 2016 the Master said this:

“The application of the 4 October was … made on the papers without a hearing and, on that basis, I would have expected a detailed witness statement in support of the application notice or at least a very full account of why it was that the claimant was in a position not to be able to complete service within the original extension granted. This is a requirement that is brought even more into focus by the fact that by now, on any view, the limitation period had expired so the claimant was not just seeking an extension of time for service but effectively an extension of the applicable limitation period.

The information given by Miss Wainwright [in] 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 services 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 to me that there was a complete failure to comply with the requirements of Practice Direction 7.A and that there was not 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 second order which was granted on the basis of the application notice alone, should be set aside on the basis the court was simply not provided with the required and/or sufficient information to enable it to understand why a further extension 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.”

Mr Davis effectively repeated the arguments advanced before the Master and said that the Master should have accepted his submissions concerning the first extension order, but sought to uphold his decision in relation to the second order. He submits that the Master was right merely to focus on the material that was put before him on each occasion, was justified in rejecting the application for the adjournment and, in any event, should have come to the same decision in relation to the second extension order even if the material in Ms Wainwright’s witness statement of 1 August 2017 had been admitted in evidence. He relies on the proposition that the facts are similar in many respects to those which arose in Foran v Secret Surgery, etc, [2016] EWHC 1029 (QB), a decision of Cox J, where, he submits, she decided that the fact that service was to be effected in a foreign jurisdiction was irrelevant to the issue of whether to extend time for service or at least was catered for in the 6-month period allowed for service out of the jurisdiction.

Ms Gumbel contends first that the Master should have dealt with the application to extend time for lodging the Acknowledgements of Service first because there was no power to deal with the application to set aside the extension orders until this was done (see paragraphs 56 and 57 above). She submits that he took a short cut that was not open to him. In any event, she submits he was wrong to reject the application for an adjournment so that the points made in Mr Davis’ Skeleton Argument lodged the day before the hearing could be the subject of further evidence on the Claimant’s behalf. Had he granted the adjournment, he would have had the benefit of Ms Wainwright’s further evidence which would have been sufficient to demonstrate that the extension order of 17 October 2016 was correct.

Nothing has been said to me in the hearing of this appeal to suggest that the Master was reminded of the nature of the hearing before him which was that of a rehearing, not merely a review of his earlier decisions: see paragraphs 62-65 above. As I have indicated, he approached the task he set himself by simply reviewing the material presented to him when he made the two extension orders. Whilst that is undoubtedly a significant part of the exercise, it is not necessarily the sole part. Whilst I differ from an experienced Master on a matter of this nature with considerable diffidence, I respectfully consider that the decision to refuse an adjournment to enable further evidence to be proffered on behalf of the Claimant to have been an error. I do not think it can simply be characterised as a case management decision with which, in the normal course of events, a Judge on appeal would not interfere: it was something that went to the heart of the exercise he was called on to perform and the decision not to permit further evidence to be given does suggest that the focus of the hearing, with the encouragement of the 1-6 Defendants, became too narrow.

It was, of course, entirely right to say that the information given in the second Application Notice (see paragraph 36 above) was “sparse”. That of itself might have suggested that more could indeed have been said. Undoubtedly, more should have been said as Practice Direction 7A requires (see paragraph 55 above), but the word used in the Practice Direction is “should”, not “must”. This suggests a marginally less strict requirement than the word “must” would convey (c.f. Practice Direction 2D). But irrespective of that consideration, a request for an opportunity to make good any omissions in the material, particularly where the interests of a seriously disabled child were engaged, ought, in my view, to have been granted. It is, of course, quite right to say the rules are in place to encourage disciplined practice so that the efficient despatch of court business can be achieved; but, if on examination, the reality is that there were truly good grounds for having granted the second extension order, it offends the primary requirement to deal with cases "justly" to ignore the reality. If the Master had been reminded of the nature of the hearing, I think it likely that he would have taken the step of adjourning to permit the reception of further evidence on behalf of the Claimant.

The one thing that he was told in the application notice of 4 October 2016, albeit to justify the “without notice” nature of the application, was that none of the Defendants had responded to any communications sent to them. Whilst he did not say so in the judgment, that fact may have influenced his attitude to their conduct when he was considering that application on the papers. Had he been invited to marry up that information with the material in the Court file concerning the first application, he may well have sensed the complete lack of cooperation from the Defendants’ side that, in reality, occurred. All that ought, I respectfully think, to have alerted him to the possibility that there was more information to be given about what had happened (or not happened) since the last extension order and that an opportunity to spell that out should be given.

In his judgment, he mentioned the case of Foran (see paragraph 70 above), a case relied upon by Mr Davis before me. Before examining briefly the issues in that case, I would caution against too much reliance being placed on individual decisions in this context unless they establish a clear issue of principle. Every case depends on its own facts and the way in which a discretionary exercise is concluded in any case may not necessarily be of assistance in carrying out a similar exercise in another. Plainly, a degree of consistency is desirable, but no court will wish to be placed in a straitjacket in such a situation. Cox J made exactly the same point at [40] of her judgment.

In Foran, another clinical negligence claim, the claimant (who was an adult bringing her own claim and was not a "protected party") issued proceedings against a UK-based company and also against three defendants resident in Poland. The alleged negligence occurred in Poland on 9 May 2012 and proceedings were issued on 6 May 2015. A detailed pre-action protocol letter was sent (in English) to all defendants in March 2015. Having initially considered serving the Polish defendants personally, the claimant's solicitors were advised by the FPS that only a Polish court could serve proceedings in Poland and, accordingly, "service through the FPS" was considered the most appropriate course of action. The advice given by the FPS was that the process of service in Poland "would take in excess of three months". Since the claimant's solicitors did not envisage that service could be achieved by 6 November 2015 (the end of the 6-month period provided for under r.7.5(2)) they sought (on a without notice basis) an extension of time for service of the claim form and associated documentation. This was granted by the Master "on the papers" on 9 November 2015, the extension of time being to 11 January 2016 "or further order". The Master directed that a hearing should take place before him on 11 January 2016. What happened, in short, was that the hearing did take place on that day and was treated as an application by the claimant to extend further the time for service. The Master extended the period further.

The issue on the appeal from the Master's decision was whether he had been right to grant the first and second extensions of time. Cox J referred to many of the authorities to which I have referred above and, in summary, concluded that the evidence put before the Master on both occasions was insufficient to justify the extension granted. The following extracts from her judgment indicate some of the reasons that led Cox J to this conclusion:

“[The] statement [relied upon] was brief and no relevant correspondence or other documentary evidence was exhibited to it. The timetable of events was set out but insufficient explanation was provided as to how that timetable demonstrated a good reason for the delays that are manifest on an analysis of its contents. The matters described by the Master … as amounting to valid reasons for an extension of time, merely recite the timetable without further analysis or evaluation of what seem to me to be some obvious omissions. It is no answer to say … that the case was unusual and complex due to the foreign element and associated factors, because it was those same factors that necessitated a more urgent approach to addressing the likely problems with service out of the jurisdiction than is evidenced in [the] statement.

…

In this case the Claimant’s solicitors were already perilously close to the expiry of the limitation period when they sent the detailed Letter before Claim, in English, to all the Polish Defendants, one of whom (the insurance company) was incorrectly identified. They knew from 6 May … that there was a need to serve the claim form out of the jurisdiction by 6 November at the latest. Problems of the kind that arose could have been anticipated at a much earlier stage. The brief account provided by [the Claimant’s solicitor] indicates a somewhat leisurely approach to the likely problems and, if more was done than is there set out, it should have been deposed to.

There is no evidence, for example, as to what enquiries were made, if any, with the Claimant’s Polish lawyer as to the process for service in Poland. The first time that enquiries were made with the Foreign Process Section appears to be on 21 September, more than four months after the protective proceedings were issued. There is no evidence as to what, if any, discussions were held with the Foreign Process Section or the Polish agents as to whether or how matters could be expedited because of the need urgently to serve the claim form. There is no account of what, if anything, was done to speed up the translation process or indeed the process for service.”

This does appear to be the only reported case where the cause of the difficulties in relation to actual service advanced before the court was the process of service through what, for this purpose, I will call the "FPS process". Cases such as Hashtroodi and Hoddinott are, as Ms Gumbel says, "domestic" cases without the foreign element. Understandably, Cox J said that the guidance given by the Court of Appeal was of "general application", but I respectfully question whether the 6-month period allowed for service outside the jurisdiction does cater in all circumstances for the difficulties of effecting service through the FPS process. Cox J expressed the view that the 6-month period was a "generous provision". I think that if she was aware of some of the periods that apparently need to be allowed for service (see, e.g., Master Cook's observations on service on the UAE at paragraph 68 above), I am not sure, with respect, whether she would have expressed that view in quite such positive terms.

There was criticism of the Claimant's solicitors in the Foran case for not pursuing matters with the FPS to see how service could be expedited (see paragraph 77 above). In view of what is said (at least now) on the website (see paragraph 26 above), such enquiries are obviously discouraged and, frankly, futile. Since there appears to be no other way in which service could be effected in Poland than by through the Polish court, it is not wholly clear what alternative steps could have been taken. The same applies in the UAE. Alternative means of service are ordinarily not possible where the domestic jurisdiction of the foreign country preserves for itself the right to effect service: see, generally, Cecil & others v Bayat [2011] EWCA Civ 135.

Returning to the present case, whilst Mr Davis has sought to draw parallels between it and Foran, he has not identified what the Claimant's solicitors should have done to hasten service given that they had no alternative but to rely upon the FPS process, most particularly against the background of a total failure on the part of any of the Defendants to acknowledge the many communications sent by the Claimant's solicitors and/or to co-operate with the perfectly reasonable requests for the records, scans and so on required to obtain the fullest information possible to be able to advance the case on behalf of the Claimant. I accept, of course, that by the time of the application for the second extension, the limitation period had expired, but, in my view, the complete failure of the Defendants to respond at all to these various communications ought to weigh heavily against the otherwise important consideration of the expiry of the limitation period (see paragraphs 59-60 above).

For the reasons I have given, I think the Master denied himself the opportunity to see further material that could have made a difference to the outcome of the hearing before him and thus fell into error.

That being so, I consider that I should now exercise the jurisdiction that he was being invited to exercise. I now have the material that the Master should have had and, whilst it might be possible to be critical of certain passages of time that were allowed to pass by the Claimant’s solicitors when trying to put together the Claimant's case, the truth is that all the preparations had been hampered by the failure of the Defendants to respond to any of the correspondence from the Claimant's solicitors. It is said that this position of failing to reply was adopted by the Defendants who had been "properly advised under UAE law not to do so" (as it was put in Mr Davis's Skeleton Argument). I have three observations about that: (i) the evidence is that the requirement for a notarised and Attested Power of Attorney showing the authority of the Claimant's solicitors to act was "generally" (not "invariably") required under UAE law and no evidence that the requirement actually applied in this case has been advanced; (ii) the University of Sharjah did not take that line when contacted by the Claimant’s solicitors; (iii) it surely was not beyond the capacity of the insurers and/or lawyers in the UAE to write a polite letter to the Claimant's solicitors indicating that such a requirement had to be complied with before it would be possible to enter into any form of correspondence. True it is that the Claimant's solicitors did not obtain any advice about this, but it was not unreasonable, in my view, to have anticipated some kind of communication from the insurers and/or lawyers along the lines I have indicated. The insurers and/or lawyers only had to perform an Internet search and, had they not known it before, they would have realised that the Claimant's solicitors were a well-known firm of English lawyers.

For my part, I consider that Master Cook was right to grant the two extensions he did grant. I would have said that, for the reasons he gave in the judgment under appeal, the material he had available prior to granting the first extension order was sufficient for him to do so. Were we both to be wrong about that, the further information given in Ms Wainwright's witness statement of 1 August 2017 would have made good any deficiency. Her witness statement would certainly have made good any deficiency in the material put forward on 4 October 2016 because all the requirements of paragraph 8.2 of the 7A Practice Direction were met (see paragraph 55 above) and, to the extent that it may be relevant, the terms of r. 7.6(3) on the basis that all reasonable steps to serve were taken by relying upon the FPS process and that any delays were materially contributed to by the failure of the Defendants or their representatives to respond to communications sent by obviously reputable English lawyers.

I should say that, strictly speaking, I think that the Master should have dealt with the Acknowledgement of Service issue to which I referred in paragraphs 56-57 and 71 above. It did go to the jurisdiction of the court to entertain the application made by 1 - 6 Defendants to set aside the extension orders. He may have taken the view that he would certainly have granted relief from sanctions because, if there was any breach of the rule, the breach was minor and could not have caused any prejudice to the Claimant. If so, it might have been appropriate to mention it briefly in the ex tempore judgment, but the failure to do so may simply have been a function of taking a robust approach to the various applications before him, an approach that Masters are required to adopt on a daily basis. For my part, I would conclude that relief from sanctions should have been granted (and to the extent that it is necessary to do so, I grant that relief) and thus the application to set aside can now be treated as having been considered properly.

For all these reasons, the decision of the Master made on 12 July 2017 must be set aside and the appeal allowed.

I will ask Counsel to agree an order giving effect to this outcome and providing for directions that deal with outstanding issues.