BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT (KBD)
7 Rolls Building Fetter Lane London EC4A 1NL |
||
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
____________________
CROSSROADS CORPORATE FINANCE (UK) LLP | Claimant | |
- and - | ||
(1) ONTARIO MANAGEMENT LIMITED | ||
(2) FRANCOIS DENIS MARIE LEGRAIN | ||
(3) HELMUT FRANZ MORENT | Defendants |
____________________
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Web: www.epiqglobal.com/en-gb/ Email: civil@epiqglobal.co.uk
(Official Shorthand Writers to the Court)
MR T JENNS appeared on behalf of the Third Defendant
The First and Second Defendants did not appear and were not represented
____________________
Crown Copyright ©
The application to set aside the substantive decisions
Law
"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."
"In the present context, however, the phrase [exceptional circumstances] 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."
"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"
"essentially first to evaluate the reason, and then to put that reason into a wider context, which requires consideration of the overriding objective and the balance of hardship to the parties".
Facts
Arguments
Findings
"Whether the limitation period has or may have expired since the commencement of proceedings is an important consideration. If a limitation 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."
This question relates to the steps taken to serve the claim within time. If the claimant has not taken reasonable steps, then the limitation point becomes determinative. The requirement is to take reasonable steps. It is not a requirement to take all reasonable steps, which would be the case for a retrospective application for an extension under CPR 7.6 (3).
Failure to give full and frank disclosure
Permission to serve outside the jurisdiction
Extension of time for service
(After further submissions)