![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Qatar Investment and Project Development Holding Company & Anor v Phoenix Ancient Art SA (Rev1) [2022] EWCA Civ 422 (30 March 2022) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/422.html Cite as: [2022] EWCA Civ 422 |
[New search] [Printable PDF version] [Help]
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice William Davis
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE COULSON
and
LADY JUSTICE WHIPPLE
____________________
(1) QATAR INVESTMENT AND PROJECT DEVELOPMENT HOLDING COMPANY (2) HIS HIGHNESS SHEIKH HAMAD BIN ABDULLAH AL THANI |
Claimants/Appellants |
|
- and - |
||
PHOENIX ANCIENT ART S.A. |
Defendant/Respondent |
____________________
Gilead Cooper QC and Francesca Mitchell (instructed by Boyes Turner LLP) for the Respondent
Hearing date : 15 March 2022
____________________
Crown Copyright ©
Lady Justice Whipple:
Introduction
The Law
Civil Procedure Rules
"(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."
"(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."
"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."
"In so far as compatible with the proper administration of justice, the court will take into account the impact of the Covid-19 pandemic when considering applications for the extension of time for compliance with directions, the adjournment of hearings, and applications for relief from sanctions."
Case Law on CPR 7.6(2)
i) First, the Court's power to extend time is to be exercised in accordance with the overriding objective (Hashtroodi v Hancock [2004] 1 WLR 3206 at [18]; Al Zahra at [49(2)]).
ii) Second, 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 (Hashtroodi at [18]; Al-Zahra at [49(3)]). Thus, the reason for the failure to serve is a highly material factor (Hashtroodi at [22]; Al-Zahra at [49(8)]). Where there is no good reason for the failure to serve the claim form within the time permitted under the rules, the court still retains a discretion to extend time but is unlikely to do so (Hashtroodi at [40]; Al-Zahra at [49(1)].
iii) Thirdly, a "calibrated approach" is to be adopted, so that where a very good reason is shown for the failure to serve within the specified period, an extension will usually be granted; but generally, the weaker the reason, the more likely the court will refuse to grant the extension (Hashtroodi at [19]; Al-Zahra at [49(4)]). Weak reasons include: a claimant who has overlooked the matter (Hashtroodi at [20]; Al-Zahra at [49(5)]), and an applicant who has merely left service too late (Hashtroodi at [18], citing from Professor Zuckerman on Civil Procedure at p 180; Al-Zahra at [50]).
iv) Fourthly, whether the limitation period has expired is of considerable importance (Al-Zahra at [50] and [51(3)]; Hoddinott v Persimmon Homes (Wessex) Ltd at [52]). Where an application is made before the expiry of the period permitted under the rules for service, but a limitation defence of the defendant will or may be prejudiced, the claimant should have to show at the very least that he has taken 'reasonable steps' (Cecil v Bayat [2011] EWCA Civ 135 at [48]; Al-Zahra at [52(1)]); a claimant's limitation defence should not be circumvented save in 'exceptional circumstances' (Cecil v Bayat at [55]; Al-Zahra at [52(3)]).
"It is of course relevant that the effect of a refusal to extend time for service of the claim form will deprive the claimant of what may be a good claim. But the stronger the claim, the more important is the defendant's limitation defence, which should not be circumvented by an extension of time for serving a claim form save in exceptional circumstances."
In a concurring judgment, at [76] Rix LJ re-stated a passage from an earlier judgment, Atkas v Adepta [2011] QB 894, at [91]:
"In such a system, it is important therefore that the courts strictly regulate the period granted for service. If it were otherwise, the statutory limitation period could be made elastic at the whim or sloppiness of the claimant or his solicitors. For the same reason, the argument that if late service were not permitted, the claimant would lose his claim, because it would become time-barred, becomes a barren excuse."
Turning back to the case at hand, he said:
"108. It is therefore for the claimant to show that his "good reason" directly impacts on the limitation aspect of the problem, as for instance where he can show that he has been delayed in service for reasons which he does not bear responsibility, or that he could not have known about the claim until close to the end of the limitation period. If he cannot do that, he is unlikely to show a good or sufficiently good reason in a limitation case.
109. That means that in a limitation case, a claimant must show a (provisionally) good reason for an extension of time which properly takes on board the significance of limitation. If he does not do so, his reason cannot be described as a good reason. It is only if a good reason can be shown that the balance of hardship should arise."
Case Law on the pandemic as a reason for extending time
Master Gidden's Judgment
"Bearing in mind these factors and applying the principles in Al-Zahra, it is not in my estimation possible to conclude other than the Claimants simply failed to grasp the nettle of what had to be done in the time permitted by rule and in keeping with the circumstances that prevailed in order to successfully accomplish what needed to be done."
"Considerations as to why the claim was not issued sooner; even holding fire on issue further whilst hoping still that the dispute could be resolved by negotiation; believing that the defendant solicitors would accept service in the jurisdiction and that they would reply to correspondence; problems encountered with electronic filing with the court; court errors and administrative inefficiency; the long-standing nature of the dispute as to authenticity; the raft of activities after 19 May which the claimants solicitors valiantly threw themselves into; the speed with which the claimants acted once the extensions had been granted on an ex parte basis; these are all factors which add to the picture but they do not to my mind, on a proper application of the principles, alter the outcome to be arrived at now."
William Davis J's Judgment
"11. Consequently, during this time, normal case management and decision making practices with respect to the service of the claim were disrupted and tasks took longer, including for myself and my assistant at the time . Whilst in retrospect it is difficult to precisely state or quantify what would have been done and when with respect to the service of the claim but for the impact of Covid-19, and notwithstanding other work related pressures and commitments, I have a high degree of confidence that, were it not for the effect of Covid-19, the two letters sent by Pinsent Masons to Boyes Turner LLP on 7 May and 15 May 2020, in which Boyes Turner were asked to confirm acceptance of service by email on behalf of the Defendant, would have been sent sooner. Had the letters been sent earlier and the same lack of response received, Pinsent Masons would have taken the requisite steps toward service of the claim out of the jurisdiction at an earlier date, including those steps outlined in my first witness statement and my second witness statement."
Submissions
Discussion
Closure of FPS
Disruption to business
Conclusion
Lord Justice Coulson :
Lord Justice Peter Jackson :