Lloyds Developments Limited v Accor S.A

On 20^th December 2024 the court issued the Claimant’s claim form in these proceedings. The Defendant is a French company and the Claimant needed the court’s permission to serve the proceedings on the Defendant out of the jurisdiction. By CPR r7.5(2) the claim form was to be served by 20^th June 2025.

On 2^nd May 2025 the Claimant applied without notice for permission to serve the proceedings out of the jurisdiction and for a four month extension of time for service. On 7^th May 2025 Waksman J gave permission for service out of the jurisdiction and extended time for service to 19^th September 2025 (an extension of 91 days). The Claimant served the claim form and the Particulars of Claim on 18^th September 2025.

The matter is before me on the Defendant’s application to set aside Waksman J’s extension of the time for service and for a declaration that the court has no jurisdiction.

The Defendant says that the Claimant had failed to show a sufficient reason for the extension of time and that the extension should, therefore, not have been granted. Alternatively, it says that the Claimant had failed to disclose to the court the fact that the extension of time would, or arguably would, deprive it of a limitation defence and that, even if otherwise justified, the extension should be set aside because of this material non-disclosure. The Claimant says that the Defendant was not deprived of a limitation defence and so there was no failure of disclosure. It says that this is a proper case for granting an extension of time for service of the proceedings.

Sundry peripheral issues were raised in the Defendant’s application and in the Claimant’s response to that. Those have now fallen away. Similarly, there is no issue as to the appropriateness of permitting service out of the jurisdiction in the circumstances of this case. The area of dispute is the extension of time for service. The parties are agreed that if the extension of time is set aside the court will not have jurisdiction (because the proceedings were not served within the period laid down in r7.5(2)). It follows that the questions to be determined are whether the time for service should be extended and whether, even if otherwise justified, the extension of time should be set aside on the basis of material non-disclosure by the Claimant.

The Defendant is French corporation engaged in a worldwide hotel operation through locally-based subsidiaries. Its UK subsidiary is Accor Hotel Services UK Ltd (“AHS”). The Claimant is a Guernsey company and was incorporated to own and manage the development of a site in Glasgow. It is now in administration.

The Claimant entered into agreements with AHS pursuant to which the Claimant was to construct a hotel on that site. The hotel was to be built to the standards of the “Tribe” sub-brand which was part of the Defendant’s operation. When the hotel had been built it was to be managed by AHS for 35 years.

In March 2019 the former owner of the Tribe brand expressed his unhappiness with the design of the Glasgow hotel. The Claimant’s case is that as a result of this AHS told the Claimant that its design infringed the copyright retained by the former owner and/or that he was entitled to prevent the use of the design. As a consequence, the Claimant agreed to change its designs for the hotel. This change led to delay and, in turn, this and the issue over copyright caused the Claimant’s funders to withdraw from the project. The Claimant contended that the actions of AHS were a repudiatory breach of contract and in July 2020 it purported to accept this repudiation and to terminate the contracts with AHS.

In 2022 the Claimant began proceedings against AHS (“the AHS Proceedings”) alleging breach of contract. In its amended form the claim in those proceedings now also alleges fraudulent misrepresentation on the part of AHS. It is said that the previous owner of Tribe had not retained the copyright in the design which had been at all times under the control of the Defendant or AHS. The AHS Proceedings have been marked by prolonged and repeated procedural wrangling involving repeated applications and orders but are now listed for trial in November 2026.

The claim against the Defendant has three elements. First, it is said that in the period March – May 2019 the Defendant made false representations to the Claimant or caused the same to be made. The allegation is that the representations were that the former owner of Tribe retained the copyright in the design or was otherwise entitled to prevent the use of the design. The Claimant says that as the copyright was at all times under the control of either the Defendant or AHS these representations were false and were known to be false alternatively that the makers were reckless as to their truth. Next, it is said that in March 2019 the Defendant and AHS wrongfully combined to injure the Claimant by unlawful means, namely by making the false representations and/or procuring breaches of the contracts between AHS and the Claimant. Finally, it is said that by its actions in March 2019 the Defendant induced AHS to breach its contracts with the Claimant. The Claimant says that it suffered loss of just under £181m as a result of the Defendant’s actions and that it is entitled to exemplary damages in addition.

The relevant chronology is as follows:

The Claimant’s application was supported by the witness statement of Rajesh Pabla, the solicitor with conduct of the case. That statement was accompanied by an exhibit which included the claim form, the Particulars of Claim, a volume of material connected to the AHS Proceedings, and correspondence with the Defendant’s solicitors.

Mr Pabla set out a summary of the claim referring to the claim form and the Particulars of Claim and to the context of the AHS Proceedings. He then identified the gateways on which the application for permission to serve outside the jurisdiction was based. Mr Pabla said that the Claimant believed it had a reasonable prospect of success in light of the matters set out in the Particulars of Claim. In addition, he pointed out that the Particulars of Claim mirrored the re-re-amended Particulars of Claim in the AHS Proceedings noting that AHS had not sought to contend in that action that the proposed amendments did not show a claim with a real prospect of success.

Mr Pabla then turned to the question of service. He said that the Claimant proposed to effect service in accordance with the Hague Convention and CPR r6.42(1)(a) and intended to use the Foreign Process Service to effect service.

Then, Mr Pabla addressed the application to extend time in three paragraphs. In the first he identified the then current deadline as being 20^th June 2025. Next, he said that a four month extension was sought adding:

“As part of this Application, Lloyds seeks a 4-month extension of time (to 20 October 2025) to effect service of the Claim Form pursuant to CPR 7.6(1). At the time of preparing this Application, there is just under 2 months before the current deadline for Lloyds to effect service. Given the uncertainties in the time it may take for this Application to be determined and for the necessary steps to be taken to effect service on Accor in France, Lloyds seeks an extension of 4 months to protect its position and ensure that it has sufficient time upon this Application being determined to effect service."

Finally in this section of the witness statement, Mr Pabla said:

“Following the issue of this Claim on 20 December 2024, Lloyds has not been in a position until recently to take steps towards effecting service. This is because Lloyds first needed to finalise its amendments to its Particulars of Claim in the AHS Proceedings, which the Particulars of Claim in this Claim substantially mirror. The draft RRAPOC was only completed and served in the AHS Proceedings pursuant to the CMC Order of Constable J dated 5 March 2025 on 26 March 2025 and Lloyds only received permission for these amendments on 1 May 2025 [RP1-A/243]. Following this, Lloyds has worked expeditiously to finalise the Particulars of Claim in this Claim and prepare this application for permission to serve the Claim out of the jurisdiction.”

The next portion of the witness statement was headed “full and frank disclosure”. At paragraph 28 Mr Pabla explained that the Claimant’s solicitors had invited Haynes & Boone, who were acting for AHS, to obtain authority to accept service on behalf of the Defendant and that Haynes & Boone had said that they were not instructed to accept service and had not responded to a subsequent letter asking if the position had changed. At paragraph 29 Mr Pabla said that the Claimant anticipated that the Defendant would adopt the same approach in these proceedings as had been taken by AHS in relation to the claim against it. He exhibited AHS’s re-amended Defence and Counterclaim as an indication of the approach which it believed that the Defendant was likely to adopt in response to the claim. Then, at paragraph 30, Mr Pabla said:

“In terms of limitation dates, this Claim was issued on 20 December 2024, which is within 6 years of the HMA and HCSA contracts being entered into on 21 December 2018 and Accor’s subsequent alleged actions giving rise to Lloyds’ claims in procuring breach of contract, deceit and unlawful means conspiracy. Lloyds therefore does not consider there to be any viable limitation defence which may impact on the Court’s determination of whether permission should be given for the Claim to be served outside of the jurisdiction.”

It follows that the “full and frank disclosure” portion of Mr Pabla’s witness statement was directed to the question of whether there should be service out of the jurisdiction rather than expressly to that of the extension of time. This is also shown by the opening paragraph of the section where Mr Pabla referred to service out of the jurisdiction but not to the extension of time.

Thus, the Claimant was making four points in support of its application for the extension of time:

I am engaged in a re-hearing and not a review of Waksman J’s decision: see per Dyson LJ in Hashtroodi v Hancock [2004] EWCA Civ 652 at [33] and Haddon-Cave LJ in Al-Zahra (PVT) Hospital v DDM [2019] EWCA Civ 1103 at [67].

CPR r7.5(1) provides that when a claim form is to be served in the jurisdiction service is to be within four months of issue. By virtue of r7.5(2) where service is to be outside the jurisdiction an extended period of six months is provided.

CPR r7.6 empowers the court to extend time for service of the claim form. Rule 7.6(3) imposes restrictions on the circumstances in which an extension of time can be granted when a party applies after the time for service has expired but does not lay down any express restriction on that power when an application is made before expiry of the time for service.

By CPR r7.4 the particulars of claim must be served either with the claim form or within 14 days thereafter and in any event by no later than the time for service of the claim form. However, time for service of the particulars of claim can be extended under the court’s general powers as provided for in r3.1(2)(c).

The starting point for the approach to be taken is the analysis set out by Carr LJ (as she then was) in ST v BAI (SA) [2022] EWCA Civ 1037. At [59] Carr LJ, with whom the other members of the Court of Appeal agreed, explained that where an application is made before the expiry of time for service of the claim the court can extend time even if the applicant has not taken all reasonable steps to comply with r7.5. The effect of the authorities was set out thus at [62] – [65]:

“[62] For ease of reference, I summarise the relevant general principles as follows:

i)

The defendant has a right to be sued (if at all) by means of originating process issued within the statutory period of limitation and served within the period of its initial validity of service. It follows that a departure from this starting point needs to be justified;

ii)

The reason for the inability to serve within time is a highly material factor. The better the reason, the more likely it is that an extension will be granted. Incompetence or oversight by the claimant or waiting some other development (such as funding) may not amount to a good reason. Further, what may be a sufficient reason for an extension of time for service of particulars of claim is not necessarily a sufficient reason for an extension for service of the claim form;

iii)

Where there is no good reason for the need for an extension, the court still retains a discretion to grant an extension of time but is not likely to do so;

iv)

Whether the limitation period has or may have expired since the commencement of proceedings is an important consideration. If a limitation defence will or may be prejudiced by the granting of an extension of time, the claimant should have to show at the very least that they have taken reasonable steps (but not all reasonable steps) to serve within time;

v)

The discretionary power to extend time prospectively must be exercised in accordance with the overriding objective.

[63] Following up on the question of limitation, as noted in Qatar at [17(iv)] (and Al-Zahra at [52(3)]), it was stated in Cecil (at [55]) that a defendant’s limitation defence should not be circumvented save in ‘exceptional circumstances’. This is a phrase that needs to be approached with care; it is one about which the judge himself expressed reservations. At their outer limit, the words ‘exceptional circumstances’ can be taken to mean ‘very rare’ (or ‘very rare indeed’). In the present context, however, the phrase should not be taken to mean any more than its literal sense, namely ‘out of the ordinary’. It means, as identified for example in Hoddinnott at [52], that the actual or potential expiry of a limitation defence is a factor of considerable importance. The factors in favour of an extension of time will have to be, either separately or cumulatively, out of the ordinary. Only in this way can the phrase ‘exceptional circumstances’ be reconciled with the primary guidance in Hashtroodi (at [18]) and [22]) that the discretion under CPR 7.6(2) is to be exercised in accordance with the overriding objective and in a ‘calibrated’ way, as emphasised in Qatar at [17(iii)]. It is neither helpful nor necessary to go further in terms of guidance, by reference to a need for ‘powerful good reason’, as the judge suggested, or otherwise.

[64] For the sake of completeness, such an approach is consistent with Cecil, properly understood. In Cecil, described by Rix LJ (at [98]) as ‘commercial litigation on a grand scale’, it was held that the fact that an extension of time was needed to obtain funding (or rather because of a desire that funding be in place for the whole of the litigation so as to eliminate or minimise any risk to the claimants) was not a good reason. The writ could and should have been served with an application thereafter for a stay if necessary (see in particular [27b)], [28b)], [42], [43], [51], [96] and [97]). In what were obiter remarks addressing the relevance of limitation periods, Stanley Burnton LJ (at [48]) emphasised that there was no need for a claimant to establish that all reasonable steps had been taken. He referred to the comments of Rix LJ in Aktas v Adepta [2011] QB 894 at [91], where Rix LJ referred to the need for strict regulation of the period for service to avoid the statutory limitation period becoming ‘elastic at the whim or sloppiness of the claimant or his solicitors’. None of this equates with a need for there to be ‘exceptional circumstances’ in the sense of circumstances that are very rare.

[65] Finally, and self-evidently, the result of an application under CPR 7.6(2) in each case will be highly fact-specific. A comparison with the outcome on the facts of other cases is unlikely to be instructive.”

A number of points of potential application here arise against the background of that starting point.

A different approach can be taken in relation to extension of time for service of the claim form and extension of time for service of the particulars of claim. A sufficient reason for the latter may not be a sufficient reason for the former. In Hoddinott & others v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203, [2008] 1 WLR 806 at [41] Dyson LJ, as he then was, per curiam expressly approved the propriety of the approach of serving a claim form and then seeking an extension of time for service of the particulars of claim. A factor which is a good reason for extending time for service of the particulars of claim does not, without more, assist in answering the question of whether there is a good reason to extend time for serving the claim form.

Generally speaking the “good reason” relied on in support of an application for an extension of time must relate to difficulties in effecting service within the time set down in the CPR: see Cecil v Bayat [2011] EWCA Civ 135, [2011] 1 WLR 3086 at [49] per Stanley Brunton LJ and Wragg v Opel Automotive GMBH [2024] EWHC 1138 (KB) at [36] per Constable J. In Collier v Williams [2006] EWCA Civ 20 at [131] Dyson LJ described the determination and evaluation of the reason why there was not service in the prescribed period as “the critical inquiry” for the court.

In Wragg Constable J explained, at [40], that “problems [in effecting service in time] which are of a party’s own making will not amount to a ‘good reason’” for any inability to serve in time or for extending time.

Constable J also explained the fact that the expiry of the limitation period means that a refusal to extend time will deprive a claimant of a potentially meritorious claim can carry little if any weight where there is no good reason for the failure to serve in time. Conversely, as was noted in ST, the fact that an extension will deprive a defendant of a limitation defence is a “factor of considerable importance” operating against the grant of an extension.

If a claim is clearly not statute-barred that can be a factor in favour of granting an extension of time. The fact that the limitation period has not expired is a relevant but not determinative consideration and even in those circumstances, justification for the extension of time is required: see Hoddinott at [52] – [55].

Where there is a dispute as to whether a claim is statute-barred the normal approach is for the court to decline to resolve that dispute in the context of an application for an extension of time. Instead, the court will normally refuse the extension and require the claimant to start fresh proceedings in which the question of any limitation defence can be resolved: see Hoddinott ibid and Longmore LJ in City & General (Holborn) Ltd v Royal & Sun Alliance PLC [2010] EWCA Civ 238 and[2010] EWCA Civ 911 at [3] and [7] respectively.

For the Defendant, Mr Blackett submitted that it was necessary for an applicant seeking an extension of time for service of the claim form to show that it was unable to serve in the period provided for in the Rules. He relied on Carr LJ’s words at [62(ii)] of ST that “the reason for the inability to serve within time is a highly material factor” and contended that these indicated that an “inability to serve” was required. Mr Blackett said that inability to serve was a precondition which had to be satisfied before an extension could be granted. He said that this not only followed from Carr LJ’s words but also as a matter of principle because unless a party was unable to serve in the prescribed time then there was no reason for extending time.

I do not accept that the position is as stark as Mr Blackett submitted. Unlike the situation where an application for an extension is made after the time for service has passed the Rules do not lay down any express precondition for the exercise of the power to extend time when the application is made before the expiry of that period. The necessary approach is, therefore, for the court’s discretion to be exercised having regard to the Overriding Objective. The authorities to which I have referred above explain the principles which are relevant to that exercise of discretion. Mr Blackett’s approach would require words to be read into the Rules for which there is neither need nor justification. The authorities explain that the necessary good reason must generally relate to difficulties in effecting service but the fact that they do so in such terms indicates that inability to serve is not a bright-line precondition for the grant of an extension. It is also to be noted that the authorities make clear that there can be an extension even when there is not a good reason though the power to grant an extension in those circumstances will rarely be exercised.

A party seeking an order without notice to the other side must make full and accurate disclosure to the court of all material facts and must draw the court’s attention to likely defences to the application and to arguments which could properly be advanced against making the order sought. Where a party had obtained an order in its favour but has failed to make such disclosure then the order is liable to be set aside or not continued even if it would otherwise be warranted. The court can continue an order or regrant the relief obtained notwithstanding a failure of disclosure but the jurisdiction to do so is to be exercised sparingly. Those principles have been articulated most fully in cases where injunctive relief of various kinds has been sought but are of general application whenever relief is sought without notice. See Mex Group Worldwide Ltd v Ford [2024] EWCA Civ 959 at [119] – [121] and The Libyan Investment Authority v J P Morgan Markets Ltd [2019] EWHC 1452 (Comm). The assessment of whether there has been material non-disclosure must have regard to proportionality and reality. The crucial question is whether the non-disclosure resulted in the court being misled such that it was approaching matters on a false or incomplete basis.

The decision of Bryan J in The Libyan Investment Authority illustrates the potential consequences of a failure to disclose an arguable limitation defence. The claimant had obtained permission to serve the third and fourth defendants out of the jurisdiction. The evidence in support of the application had said in bland terms that the author of the relevant witness statement did not believe that those defendants had “any credible limitation argument”. Bryan J was highly critical of the claimant’s failure to explain that in order for its claim not to be statute-barred it needed to rely on section 32 of the Limitation Act 1980. Moreover, the claimant’s evidence had not addressed the material on which it would rely to discharge the burden on it of satisfying the requirements of section 32. Bryan J concluded that this was a substantial and serious breach of the disclosure obligation and set aside the order for service out as a consequence.

Three conclusions flow from analysis of the factors which I will set out below. First, the Claimant did not show a good reason for extending time for service of the claim form. Second, there is no basis here for extending time in the absence of a good reason. The third follows from those two and is that material and arguments put forward by the Claimant did not justify a departure from the starting point that the proceedings were to be served within the six month period provided for by the Rules.

Mr Webb KC submitted that I should take account of the fact that the Claimant is in administration. He contended that this meant that it took longer for the steps in the proceedings to be authorized and for funding to be provided than would otherwise have been the case. There was no reference to this in either of Mr Pabla’s witness statements and the fact of the administration was not put forward there as a reason for the time for service to be extended. Still less was there any detail provided as to particular steps in the process which had taken longer than they would otherwise have done because the Claimant is in administration. I do not accept that the fact that a claimant is a company in administration can operate as a good reason for extending the time for service beyond the period provided for in the CPR. If the administrators of such a company choose to cause it to commence proceedings they must take the necessary steps to ensure that it can comply with the time limits laid down in the CPR. I also note Carr LJ’s indication in ST at [62(ii)] that the fact that a party is awaiting funding may not be a good reason for extending time. Even if the fact of administration is potentially capable of being relevant it does not assist the Claimant here in light of the absence of evidence as to the actual effect which that status had on its ability to serve the claim form within the period provided for in the Rules.

The Claimant’s explanation for the interval of 19 weeks between the date of issue of the claim form and the date of the application was that it had needed time to finalize the amendments to the Particulars of Claim in the AHS Proceedings, which those in the current action were to mirror. Mr Webb also emphasized this point in his oral submissions to me. It was said to be desirable for the Claimant’s pleadings in the current case to mirror those in the AHS Proceedings. The submission was that this would facilitate the two claims being tried together and avoid the scope for peripheral and forensic arguments about differences of detail in the pleadings. The Claimant’s position was that as a consequence it had been appropriate for the Claimant to wait until the amendments had been finalized and approved before moving to service of these proceedings. To the extent that this argument has any force it can only be in relation to the service of the Particulars of Claim. It has no relevance in relation to the service of the claim form. The claim form had been issued in December 2024 and it is not suggested that there would be any need to amend that document to ensure it mirrored the latest iteration of the Claimant’s Particulars of Claim in the AHS Proceedings. It would have been possible for the Claimant to serve the claim form in the six month period and to seek an extension of time for service of the Particulars of Claim if the need to mirror the pleadings in the AHS Proceedings was thought to warrant this. There was no explanation whether in the Claimant’s evidence or in Mr Webb’s submissions as to why this was not done.

In any event, the argument based on the desirability of mirroring the pleadings in the AHS Proceedings provides only very limited assistance to the Claimant. In his witness statement Mr Pabla said that before finalizing the Particulars of Claim in this action it was necessary to wait until AHS’s application to strike out the claim in the AHS proceedings had been determined and to await approval of the amendments (including the amendments to quantum) being put forward there. In his oral submissions Mr Webb pointed to the desirability of the central representations being set out in the same terms in both actions. These points simply do not bear the weight which the Claimant sought to place on them. The claim in the AHS Proceedings was based on the contract between the Claimant and AHS together with the allegation of fraudulent misrepresentation in relation to that contract. The current claim is against the Defendant. This claim alleges deceit, the inducing of a breach of contract, and conspiracy. As a consequence, there will inevitably be differences between the pleadings in the two actions. I accept that it is desirable for the key representations to be set out in the same terms in each action but, although desirable, that was not essential. Moreover, there was no reason why the pleadings could not have been served in a form which reflected the substance of the case as put forward in the AHS Proceedings. To the extent that the precise mirroring of the latest iteration of the pleadings in that case was required that could have been achieved by subsequent amendment of the pleadings in the current action to reflect the changes made in the AHS Proceedings. In this regard it is relevant to note that there is no suggestion that the developments affecting the pleadings in the AHS Proceedings would have any impact on the substance of the Claimant’s case in this action. Those developments might have an impact on the pleading of the details of the claim but not on the substance of the allegations being made. Further, as I have noted above, this argument can only have any weight in relation to the Particulars of Claim. There is no suggestion that the developments in the AHS Proceedings would or could have any impact on the terms of the claim form here.

One of the reasons the Claimant advanced in favour of the extension of time was the uncertainty as to the time it would take for the Claimant to be granted permission to serve outside the jurisdiction. That contention might have had some force if the Claimant had applied promptly for such permission and was still awaiting a decision at the time of the application for an extension of time. That was very far from being the position here. It should have been clear from 5^th February 2025, at the latest, that the court’s permission to serve out of the jurisdiction would be needed. I note in that regard that it was not until 31^st January 2025 (six weeks after the claim form had been issued) that the Claimant’s solicitors wrote to Haynes & Boone seeking confirmation that the latter were instructed to accept service. There was no explanation of why that was not done earlier. Two months after receiving the letter of 5^th February 2025 saying that Haynes & Boone had no instructions to accept service the Claimant’s solicitors wrote asking if the position had changed. There was no explanation of why no action was taken in that two month period to seek permission to serve out of the jurisdiction nor of why it was only four months after the claim was issued (and almost three months after the letter of 5^th February 2025) that this permission was being sought. Such an application did not need to await the finalization of the amendments in the AHS Proceedings. It could have been supported by an explanation of the Claimant’s case and, if need be, by draft Particulars of Claim and an explanation that some amendments might be made to matters of detail when the amendments in the AHS Proceedings had been finalized.

Similarly, it is relevant that the application for the extension of time came just over four months after the claim was issued. There was also no explanation of why that application had not been made earlier. It must have been apparent from an early stage that if the Particulars of Claim were to mirror those in the AHS Proceedings an extension of time for serving them might well be needed. There was no explanation of why such an application was not made earlier rather than taking the course which the Claimant did of delaying the application for permission to serve out of the jurisdiction and for an extension of time until the amendments in the AHS Proceedings had been approved by the court. Mr Pabla’s witness statement provided little by way of explanation of what steps the Claimant had been taking in the current proceedings in the period since the claim form had been issued.

The Claimant prayed in aid of the extension the fact that only two months of the six month period for service remained. In light of the factors I have just considered this point has no force. In order to be able to rely on the fact that little of the period provided for in the Rules remained the Claimant had to demonstrate that it had not brought about this situation itself and that it had acted energetically in the period that had passed. The Claimant did not even attempt to demonstrate that here and the history shows instead a lack of urgency on the part of the Claimant.

The Claimant said that it intended to serve the proceedings using the Foreign Process Service and invoked the “uncertainties in the time” such service would take as a factor in favour of the extension. However, it gave no explanation of why it had chosen that route nor did it provide any assessment of how long that process would take nor of the time which would be needed to serve in some other way. Similarly, there was no explanation of what, if any, steps the Claimant had taken to establish how long would be needed to serve by way of the Foreign Process Service. Service in that way is one of the methods of service permitted under the Hague Convention but not the only one. Service by a relevant judicial authority is also permitted. As events turned out that was the form of service which the Claimant ultimately used in this case engaging a bailiff to effect service in France. It was incumbent on the Claimant to provide this information. Any extension of time for service needs to be justified and a party seeking the extension needs to provide “chapter and verse” of why the extension is needed. Here, the Claimant referred instead in the vaguest of terms to “the uncertainties in the time it may take”. Use of the Foreign Process Service is entirely legitimate and has real benefits. Thus, service by such route reduces the risk of the kind arguments as to whether the service has been effective which formed one of the peripheral issues here until very shortly before the hearing. However, those benefits and the time taken for service using that route will not necessarily justify an extension of time where service can be effected by a different method without the need for an extension of time. That is all the more so where, as here, the extension sought would lead to service outside the primary limitation period and where the extension is sought by a party which has not acted expeditiously in relation to service. Not only did the Claimant give no explanation why it needed to use the Foreign Process Service but as matters turned out it chose to serve by using a bailiff. It is of note that the Rules already provide an extended period for service out of the jurisdiction, namely six months rather than the normal four month period. A party cannot obtain an extension of time simply by relying on the general factor that it can take longer to serve overseas than within the jurisdiction. That has already been taken into account in the increased period set out in the Rules. Therefore, something more is needed and a particular reason has to be shown. The Claimant failed to do that here. It follows that the time needed for service through the Foreign Process Service is not a factor in favour of an extension of time in the circumstances of this case.

Constable J explained in Wragg, at [37], that the effect of the authorities was that “a defendant should not be criticised for refusing to accept service otherwise that in accordance with the CPR and that a defendant has no duty to help the claimant in effecting service”. Constable J pointed out, at [38], that this was not inconsistent with “recognising that the additional time required to effect service through the Foreign Process Service process or difficulties which present themselves during [that] process which are outside the control of the claimant can amount to a good reason by which a party may justify an extension of time”. It is important to note that Constable J then emphasized that “it is necessary to consider what the actual reasons for delay were, before determining whether or not they are ‘good’” (original emphasis). Constable J was certainly not saying that the need to use the Foreign Process Service will always justify an extension of time beyond the six months provided for in the Rules and for the reasons I have explained in the preceding paragraph it was not a justification in the circumstances of this case.

Despite that stricture against criticizing a defendant for insisting on service in accordance with the CPR Mr Webb contended that the Defendant’s failure to accept service in England should be regarded as having been unreasonable in the circumstances of this case. That was because the Defendant already had solicitors acting on its behalf and because of the close connexion between this claim and the AHS Proceedings. Mr Webb went on to say that this unreasonableness should be taken into account in the exercise of my discretion as a factor in favour of granting the extension sought by the Claimant. I do not accept these contentions. The course for which Mr Webb pressed would amount to penalizing the Defendant for a failure to agree to accept service in England. The court cannot with one breath say that the Defendant is not to be criticized for refusing to accept service otherwise that in accordance with the Rules and with the next breath say that such a refusal amounts to unreasonable conduct which weighs in favour of the Claimant in the exercise of the court’s discretion. Moreover, in the particular circumstances of this case the Defendant’s decision does not assist the Claimant. The Claimant did not seek the Defendant’s agreement to service in England until 31^st January 2025 and did not apply for permission to serve out of the jurisdiction and for an extension of time until 2^nd May 2025. The Defendant’s failure to change the position set out in the letter of 5^th February 2025 provides no support for the Claimant’s current application. The Claimant’s stance between 5^th February 2025 (the receipt of the letter of from Haynes & Boone) and 10^th April 2025 (when the Claimant’s solicitors wrote again to see if the position as to accepting service had changed) appears to have amounted to no more than “fondly hoping” (adopting Constable J’s words) that the Defendant would change its position and accept service in the jurisdiction. As Constable J explained in Wragg, at [39], that does not amount to a good reason for an extension of time.

No reference was made in the evidence which the Claimant put before Waksman J to the time which would be needed to translate the documents. Putting matters at the highest it might be regarded as one of the unspecified elements included in the general reference to “the necessary steps to be taken to effect service … in France”. However, in his witness statement in opposition to the Defendant’s application Mr Pabla included the following as a matter relevant to “the uncertainties of the time to effect service in France”:

“b)

Upon the Order being granted, Lloyds sought to arrange for required French translations to be prepared of all the documents to be served (almost 3,000 pages were required to be translated from English to French). This was a considerable undertaking and ultimately took a substantial period of time to complete. My Firm had already been in contact with translation firms to seek quotes for the translation work prior to Lloyds’ Application and the Order being made. Following the making of the Order (and the documents required for service then all being available), my firm then re-engaged with a translation firm, Absolute Translations, in relation to translations being prepared. Between 12 May 2025 and 3 July 2025 my Firm engaged in correspondence with Absolute Translation regarding various quotation options and addressing queries for the preparation of the translations [RKP2-A /61-92]. On 3 July 2025, Absolute Translations were instructed to proceed and estimated a 5-week turnaround time for preparing the translations. The translations were ultimately received on 7 August 2025.”

The Claimant’s solicitors had begun to investigate the arrangements for translation only very shortly before the application for an extension of time was made. An initial inquiry had been sent to translators on 25^th April 2025. For the time needed for translation to be relevant as a factor in favour of an extension of time the Claimant would need to have provided full details of the steps which had been taken to engage translators and the time which would be needed for that exercise. There was no reference at all to that in the evidence which the Claimant put before Waksman J. Even in his witness statement for the current hearing Mr Pabla only provided information in the most general of terms. He did not explain why it took from 12^th May 2025 to 3^rd July 2025 to address the “various quotation options” and the “queries for the preparation of the translations” let alone explain why those matters had not been resolved earlier. There is, however, a more telling point which is the time which would be needed for translation is again an argument in favour of extending time for service of the Particulars of Claim rather than for service of the claim form. Mr Pabla explained that nearly 3,000 pages of material had to be translated (principally the Particulars of Claim and the documents referred to therein). However, the claim form only ran to five pages and presumably could have been translated in a relatively short period of time.

Mr Blackett made reference to the events after Waksman J’s order. He pointed out that the Claimant did not order the translation of the documents until 3^rd July 2025; that although the documents were received from the translators on 7^th August 2025 they were only sent for service on 15^th September 2025; and that when the documents were sent for service the Claimant was able to effect service through the bailiff within three days. Mr Blackett relied on those matters in two respects. First, he said that they showed continued delay on the part of the Claimant which was relevant to the exercise of the court’s discretion. Second, he submitted that those events indicated that if there had been prompt action by the Claimant it would have been able to serve before 20^th June 2025, meaning that the extension was not necessary, alternatively that only a relatively short extension was justified.

Mr Webb countered that argument with the submission that the question of whether an extension of time was warranted was not to be judged with hindsight. He said that subsequent events should not be regarded as casting doubt on the validity of the assessment made at the time of the application nor on the reasonableness of the concerns as to the time which would be needed. The force of that submission is somewhat reduced when it is noted that the Claimant’s evidence before me in Mr Pabla’s second witness statement sought to rely on the events after Waksman J’s order as justification for the extension of time.

I accept Mr Webb’s submission that the court must guard against the influence of hindsight. Nonetheless, the events after Waksman J’s order are not to be wholly disregarded. The question of whether there was a good reason for the extension of time for service is to be determined objectively. If a party obtains an extension by contending that a particular period of time is needed for service then subsequent events can provide some support for the validity of that contention. Thus, if a party can show that it acted energetically after obtaining an extension but was still only able to serve shortly before the end of the extended period it can rely on that history as showing that its concerns were justified. Account can also be taken of subsequent events if they show the concerns were unjustified. However, considerable care is needed in the latter regard. A party is not to be penalised for acting energetically and managing to arrange matters more quickly than was anticipated if the original assessment of the problems and likely timetable was appropriate. That was not the case here and there is real scope for criticism of the Claimant’s actions. At the very lowest the position is that it is not open to the Claimant to say that events after Waksman J’s order vindicated the extension of time.

It is of note that such force as the preceding points might have had in favour of the Claimant related to the service of the Particulars of Claim rather than of the claim form. The Claimant quite simply failed to put forward any reason, let alone any good reason, why time for serving the claim form, as opposed to the Particulars of Claim, should be extended. This is a powerful factor against the grant of an extension of time.

It is necessary to consider whether the claim would be statute-barred if the extension were to be refused. The claim is based on the alleged actions of the Defendant in March – May 2019. It is said that the conspiracy was formed on about 4^th March 2019; that the breach of contract was induced then; and that the representations on which the deceit claim is based were made between March and May 2019. Those actions caused delay in the project and this was the cause of the loss on which the Claimant relies. The Defendant says that those losses were caused by August 2019. Indeed, it appears that the Claimant’s case is that it began to suffer loss very shortly after the allegedly wrongful actions in March 2019.

The claim is brought in tort and so the primary limitation period expired by the end of August 2025 at the latest. The Claimant accepts that the primary limitation period expired then but says that the claim is not statute-barred because it can rely on section 32 of the Limitation Act. Subsections (1) and (2) of that section provide that:

“(1)

Subject to [ subsections (3) [, (4A) and (4B)] ²]¹ below, where in the case of any action for which a period of limitation is prescribed by this Act, either —

(a)

the action is based upon the fraud of the defendant; or

(b)

any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

(c)

the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.

(2)

For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.”

Initially, Mr Webb sought to argue that each element of the claim is based on the alleged fraud of the Defendant. In the course of submissions he accepted that this was only so in relation to the deceit claim. Mr Webb nonetheless relied on section 32 in respect of the allegations of conspiracy and inducing breach of contract. In relation to those parts of the claim he contended that facts relevant to the Claimant’s rights of action had been deliberately concealed by the Defendant. It follows that in relation to the conspiracy and inducing breach of contract allegations the issue of whether the limitation period has expired will depend on whether there was such deliberate concealment. In relation to all three elements it will also be necessary to consider when the Claimant first either discovered the fraud or concealment or could with reasonable diligence have done so. The burden of proof in relation to those matters lies on the Claimant.

The Claimant’s position was that the first time it learnt that the copyright had belonged to AHS and/or the Defendant and that it had been deceived in 2019 was on 30^th June 2021. This was when it received AHS’s response to the Claimant’s pre-action protocol letter in the AHS Proceedings. In that letter AHS said that it or the Defendant had had control of the copyright throughout. The Claimant contends that it could not have known of this earlier and also that its knowledge of other matters forming the basis of the claim only came after June 2021. On that basis the Claimant says that the effect of section 32 is that time did not begin to run until the end of June 2021 at the earliest and that the claim is not statute-barred.

The Defendant does not accept that the Claimant was deceived and says that in any event the Claimant knew or could have known the true position in relation to the copyright and other matters in 2019. Mr Blackett and Mr Spence annexed to their skeleton argument an appendix setting out extracts from the Claimant’s pleadings and evidence in the AHS proceedings. They contend that these show that the Claimant knew of various matters on which it now relies in 2018 and 2019.

Is the position sufficiently clear cut that I am able to say either, as the Claimant invites me to do, that the claim is demonstrably not statute-barred and that the Defendant’s argument to the contrary is misconceived or, as the Defendant invites me to do, that the Claimant’s invocation of section 32 is bound to fail? There is considerable force in the points which the Claimant makes as to its knowledge. Moreover, there is scope for debate as to the conclusions which can properly be drawn from the material referred to in the appendix to the Defendant’s skeleton argument. However, the question of whether the Claimant’s invocation of section 32 will succeed is not capable of resolution at this stage on the limited material before me. The burden of satisfying the requirements of section 32 is on the Claimant and there would need to be witness evidence, cross-examination, and a detailed examination of the documents as a whole before the issue could be resolved. There is scope for argument both as to whether there was deliberate concealment by the Defendant and as to when the Claimant knew or ought to have known the true position. It is possible that there will be different conclusions reached in relation to the different elements of the claim. Thus, the issue of whether there was deliberate concealment is relevant to the allegations of conspiracy and inducing breach of contract but not to the deceit claim. It would be possible for the court to find that there had not been deliberate concealment (with the consequence that section 32 did not assist the Claimant in relation to the conspiracy and inducing breach of contract claims) but that the Claimant neither knew nor ought to have known of the deceit until a later date.

The position is that the primary limitation period expired in August 2025. Any extension of the time for service beyond then would prevent the Defendant invoking the Limitation Act as a defence to a fresh claim. In addition, it is not possible to say that the Claimant’s argument based on section 32 will necessarily succeed. It follows that to maintain the extension of time granted by Waksman J will preclude the Defendant from advancing an arguable limitation defence. This is a potent factor against the grant of an extension of time. It is not an absolute bar to extending time but it is a highly relevant consideration. Moreover, as explained above, the court’s normal approach when there is a live dispute as to whether a claim is or is not statute-barred is not to adjudicate on that dispute in the context of an application to extend time for service. Instead, the normal approach is to refuse an extension of time and require the issue to be addressed in fresh proceedings. In addition, the expiry of the primary limitation period means that there has to be renewed focus on the adequacy of the steps which the Claimant took with a view to service of the claim form within the period provided for in the Rules. As my preceding analysis has shown there is considerable scope for criticism of the approach taken by the Claimant and there were periods of delay and inaction on its part.

I accept that the claim is potentially meritorious in the sense that it is not susceptible to being struck out. I am also conscious of the value of the claim and its importance to the Claimant. Nonetheless, the Claimant has failed to provide a sufficient basis for an extension of time for the service of the claim form and the application for such an extension is to be refused.

Mr Pabla did refer to limitation at paragraph 20 of his witness statement in support of the Claimant’s application as I have noted above. However, that reference was in very short terms and solely addressed the question of whether the claim was statute-barred when the claim form was issued in December 2024. The reference was made only in the context of whether permission should be given to serve out of the jurisdiction.

Mr Pabla did not explain that the primary limitation period would expire in August 2025 nor did he point out that the extension of time sought would lead to service after the expiry of the primary limitation period. Mr Pabla did not say that it was the Claimant’s position that it was entitled to rely on section 32 of the Limitation Act and still less did he give any account of the basis for that assertion by the Claimant let alone provide details of the material on which the Claimant would rely.

Mr Webb accepted that the Claimant had an obligation to disclose any properly arguable defences or objections to the extension sought. However, he submitted that there was no substance in the limitation argument in this case. He said that this meant that the Claimant was not obliged to draw the court’s attention to that untenable argument. There is no question that the extension took matters beyond the primary limitation period and so Mr Webb’s argument amounts to saying that the Claimant’s case on section 32 is so compelling that there was no need to say either that if an extension were not granted the Claimant would have to rely on that provision or that the grant of the extension deprived the Defendant of the opportunity of pleading limitation and requiring the Claimant to establish that section 32 applied. I do not accept that submission. As I have explained above the applicability of section 32 is nowhere near as clear cut as the Claimant contends. There is real scope for argument as to whether there had been deliberate concealment by the Defendant and as to when the Claimant knew or ought to have known the true position.

It follows that the Claimant should have drawn the court’s attention to those matters. The Claimant should have pointed out that the primary limitation period had not yet expired but that it would expire during the currency of the extension. It should also have provided a detailed account of the basis on which it said section 32 would come into play. As was seen above I regard the fact that the extension would deprive the Defendant of a potential limitation defence as a powerful factor against the grant of that extension of time. If Waksman J had been told in terms, as he should have been, that the extension sought would go beyond the primary limitation period but that the Claimant would rely on section 32 in response to any limitation argument he may very well have taken a different approach. He may well have concluded that any extension of time should only be until the expiry of the primary limitation period.

I accept that there was no deliberate intention to mislead the court. The point appears to have been overlooked. Nonetheless, it is the position that the Claimant failed to make the disclosure which it should have made and that as a consequence the court approached the matter on a false basis in an important respect. This was a significant failure on the part of the Claimant. I have already concluded that an extension of time is not warranted but even if I had come to the view that an extension were otherwise appropriate this failure of disclosure would have led to the setting aside of the extension of time and would have meant that it was not appropriate to grant an extension afresh.

The extension of time for service of the claim form granted by Waksman J is, therefore, to be set aside. As a consequence, the claim form was served out of time and the Defendant is entitled to a declaration that the court has no jurisdiction to try the claim.