Nefelia Shipping SA & Anor v Mosaic Fertilizantes Do Brazil Ltda & Anor

Mr. Nigel Cooper KC: Introduction

1. The claim in this action is brought by the Claimant shipowners (and assignees) against the Defendants in respect of claimed contributions to general average pursuant to a general average bond dated 19 March 2018 and a general average guarantee dated 20 March 2018. By a general average adjustment dated 05 April 2019, the general average adjusters determined that the Defendants’ contribution to general average was a total sum of US$892,381.46 plus interest, which is the sum claimed by the Claimants from the First Defendant under the general average bond and from the Second Defendant under the general average guarantee. The Defendants are cargo owners and their insurers, both being Brazilian. The claim for general average arises out of the grounding of the vessel M/V “KONA TRADER” (“the Vessel”) at Paranagua following a main engine failure in March 2018.

2. The Claim Form was issued on 11 September 2023. In order to effect service of the Claim Form on the Defendants in Brazil, and in light of advice from the Foreign Process Section (“the FPS”) in June 2023 that service would take up to 12 months, the Claimants applied for an extension of time for service of the Claim Form for 15 months (i.e. up to 15 November 2024). The application was made on the basis that it: “… allows a reasonable margin, while still respecting the reasons for the default validity period and the importance of speedy service.”

3. The order was granted on 22 September 2023 by Calver J. (“the First Extension Order”), but it was not until 04 October 2024 that documents were lodged with the FPS which complied with the requirements for service in Brazil.

4. On 07 November 2024, the Claimants applied (without notice) under CPR r.7.6(2) for a further extension of time for service of the Claim Form to 15 November 2025, which was granted (on paper as requested) by Knowles J. on 14 November 2024 subject to a liberty to the Defendants to apply to set aside that order (“the Second Extension Order”).

5. The Claimants obtained an order from Foxton J. permitting them to effect service of the Claim Form by alternative means on 14 April 2025 (“the Alternative Service Order”).

6. On 22 April 2025, the Claim Form was served on the Defendants by the alternative methods permitted by the Alternative Service Order.

7. The Defendants apply in accordance with the liberty in the Second Extension Order to set aside that extension of time for service of the Claim Form. The Defendants further submit that if that application is successful, then the Claim Form should be set aside and the Court should decline to exercise jurisdiction in the matter.

8. The basis for the Defendants’ application is that: i) The evidence before the Court failed to provide sufficient justification for the giving of an extension, and none existed; and ii) The Claimants failed to give proper disclosure when making the application. The relevant legal principles

9. In making an application without notice for an extension of time for service of a claim form, a claimant is subject to the following requirements: i) By PD 7A §11.2 the evidence in support of the application should state all the circumstances relied upon and a full explanation as to why the claim has not been served. ii) By §F.2.6 of the Commercial Court Guide, on all applications without notice it is the duty of the applicant and those representing the applicant to make full and frank disclosure of all matters relevant to the application.

10. The requirements outlined in the previous paragraph reflect the guidance in the authorities: i) Where a defendant applies to set aside an extension of time under CPR r.7.6 made without notice, the application is a re-hearing rather than a review; Hashtroodi v Hancock [2004] 1 WLR 3206 at [33]. ii) The discretionary power must be exercised in accordance with the overriding objective; Hashtroodi at [18] and ST v BAI (SA) (trading as Brittany Ferries) (Rev 1) [2022] EWCA Civ 1037 at [62(v)]. iii) The starting point is to identify the reason for the failure to serve within the validity period, i.e. the cause of the delay. This is part of the overriding objective of dealing with cases justly because it is not possible to deal with a case justly without knowing why a claimant has failed to serve the Claim Form within the specified time; Hashtroodi at [18]. iv) However, a 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 for service. Accordingly, any departure from this starting point has to be justified; Brittany Ferries at [62]. v) 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 a claimant (or its solicitors) or waiting for some other development (such as funding) may not amount to good reason; Brittany Ferries at [62] and Hashtroodi at [35]. In this respect, it is clear from Hashstroodi at [19] and [20] that a court has to apply a calibrated approach in assessing the strength of a claimant’s reasons for why a claim form was not served within the period of its initial validity and the weaker the reason the more likely the court will be to refuse the extension of time. vi) 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; Brittany Ferries at [62]. vii) If a limitation defence will or may be prejudiced by the granting of an extension of time, a claimant should have to show at the very least that they have taken reasonable steps (but not all reasonable steps) to serve within time; Brittany Ferries at [62]. viii) The fact that a defendant has had informal notice of the claim is a relevant factor to be considered; Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806 at [58]. Background Chronology of Events

11. As already stated above: i) The First Defendant is a party to a general average bond dated 19 March 2018 pursuant to which it agreed to pay the proper proportion of any general average contribution found to be reasonably, properly and legally due from it. The bond included a law and jurisdiction clause expressly providing for (i) the guarantee to be governed by English law, (ii) the exclusive jurisdiction of the High Court of Justice London and (iii) each party to irrevocably submit to the jurisdiction of the English court. ii) The Second Defendant signed a general average guarantee on 20 March 2018 in respect of cargo interests’ contribution to general average. The guarantee included a law and jurisdiction clause expressly providing for (i) the guarantee to be governed by English law, (ii) for the exclusive jurisdiction of the High Court of Justice London and (iii) for each party to irrevocably submit to the jurisdiction of the English court. iii) the general average adjustment, which is the subject of the claim in this action was published on 05 April 2019, pursuant to which the general average adjusters determined that the Defendants’ contribution to general average was a total sum of US$892,381.46.

12. On 02 December 2022, Ince & Co. Piraeus (“Ince & Co.”), the solicitors then acting for the Claimants requested W.E. Cox, the claims consultants instructed on behalf of the Defendants to nominate English solicitors to accept service. The Defendants did not do so.

13. On 04 April 2023, Ince & Co. e-mailed W.E. Cox noting the Defendants’ continued refusal to appoint English solicitors for service and attaching a draft claim form.

14. On 20 June 2023, Ince & Co. sought advice on the specific requirements to effect service in Brazil from the FPS and Brazilian marine and legal consultants at Van Herp & Frumento. Later that day, the FPS gave guidance for service under the Hague Convention.

15. On 21 June 2023, Van Herp & Frumento confirmed that service had to be via letter rogatory or similar document under the Hague Convention.

16. Ms. Khan, the partner at Ince & Co. with responsibility for conduct of the claim on behalf of the Claimants made her first witness statement in support of the first application for an extension of the validity of the Claim Form on 10 August 2023. The Claim Form was issued on 11 September 2023.

17. Calver J. made the First Extension Order extending the validity of the Claim Form by 9 months to 15 months on 20 September 2023 and the amended Claim Form was sealed on 27 September 2023. Ms. Khan also made a second witness statement in support of the application for extension of the validity of the Claim Form on 27 September 2023. The purpose of that statement was to clarify the roles of the First and Second Claimants.

18. On 6 October 2023, Ince & Co. sent the documents for service on the Defendants to the FPS together with a completed Hague Convention Article 5 request form. The FPS received the documents on 16 October 2023.

19. On 31 October 2023, Ince & Co. followed up with the FPS to ask for an update on the status of their application. On the same day, Ince & Co. also advised W.E. Cox. by e-mail that proceedings had been issued and documents lodged with the FPS for service on the Defendants in Brazil. That e-mail refers to attempts by W.E. Cox to contact the Claimants directly and also to a request for security for costs.

20. By 5 February 2024, WFW had replaced Ince & Co. as the Claimant’s solicitors and Ms. Khan and Mr. Farach had moved to WFW. On that day, Mr. Farach reported to Ms. Khan that he had finally been able to get through to the FPS who had told him they were still working on cases from July 2023 but would respond to a query which he had raised with them.

21. On 7 February 2024, Mr. Farach had a further call with the FPS and also an exchange of e-mails. It appears that the FPS were unable to locate the documents originally lodged by WFW and requested confirmation of when they were sent. Mr. Farach confirmed that the documents were delivered on 16 October 2023 but offered to repost documents if necessary. There was also an e-mail exchange regarding the provision of new Hague Convention request forms.

22. On 20 February 2024, WFW spoke to the FPS and then followed up with an e-mail about ‘a potential issue with our submission’ and ‘to check whether the submission contains all the required duplicates before you process it’. It is unclear whether by this date, the FPS had been able to find the documents sent by WFW because Mr. Farach attached the DHL delivery confirmation. It is clear, that if the FPS had been able to locate the documents, they had not considered them given Mr. Farach’s wish to check that the documents were complete before the FPS processed.

23. On or around 27 February 2024, Mr. Farach reported to Ms. Khan about his discussions with the FPS and the fact that they had revealed certain errors in the documents, which he described as not being known to him at the time when he prepared them for submission. He also reported that the FPS had not yet reached the Claimants’ submission and so he had resent everything urgently and arranged for a clerk in the FPS to replace the original documents so that the Claimants didn’t lose its place in the queue. The FPS received the substitute documents on 01 March 2024.

24. However, on 19 March 2024, the FPS rejected the Claimants’ request for service (“the 1 st FPS Rejection”). The Claimants submit that at least three of the reasons given by the FPS related to matters which had not been the subject of any guidance that was reasonably available to WFW: i) ‘ N224 form… when serving two different people or company’s you need to have two separate forms submitted ’. The Claimants say that they were only told about this in or around February 2024 (and tried to resolve it, but without success). ii) ‘ Please add the case number to the N510 form ’. However, the CPR requires that the N510 form is filed at the same time as the Claim Form: PD 6B, para. 2.1. The Claimant says that necessarily, at that time, there is no claim number and there was no reasonably available guidance that, for the purposes of service under the Hague Convention, the claim number must be added later. iii) The FPS also said that there are two options for the Hague Convention request form and, if the Claimants want the form processed and sealed by the FPS before translation into Portuguese, they were required to advise the FPS of that. However, the Claimants say that translation after process by the FPS was the only “option” presented to the Claimants by the FPS in June 2023. Further, the Claimants had confirmed in correspondence with the FPS in October 2023 and again in February 2024 that they wanted to translate the form after it had been processed by the FPS.

25. The other reasons given by the FPS appear to have been the result of administrative errors by WFW in the process of preparing documentation required for a request for service by the FPS under Article 5 of the Hague Convention, for example omitting to mention the certificate of translation and notes for defendant in the list of documents in the Hague form.

26. WFW collected the documents from the FPS on 02 April 2024 and re-submitted them on 15 April 2024 with a request for service.

27. On 22 April 2024, WFW reported the delays with the original request for service to the Claimants. Mr. Farach put the position in the following terms: “… We write with an update on progress of our submission to the FPS which has been delayed due to various additional requests by the agency (which were not mentioned in their original guidance). These points were only recently raised. To this end, we have been liaising with one of their case handlers over the course of the past month to ensure all red tape is in order so that the submission can now be accepted. This is a very time-consuming exercise, but our only option right now is to wait and contact the FPS frequently for an estimate on when the documents will be served in Brazil if at all possible.”

28. On 2 July 2024, WFW asked the FPS for an update.

29. On 23 July 2024, the FPS rejected Owners’ second request for service in Brazil (“the 2 nd FPS Rejection”) for reasons, which were different to the 1 st FPS Rejection. i) One of the reasons was that the N224 form was not provided ‘ with ’ the covering letter to the FPS, i.e. together rather than with the body of other documents. Whilst providing a covering letter and an N224 form was part of the guidance, it was not stated that the two had to be physically provided together. (The N224 forms were, however, included in the submission). ii) Another reason was that the certificate of translation did not list various documents. iii) A final reason was the absence of an additional covering letter from WFW. But the guidance available to WFW only required a covering letter, which had been included as part of the submission.

30. WFW collected the documents from the FPS on 24 July 2024 and re-submitted them on 3 September 2024. This time, the FPS accepted the documents and despatched them to the Brazilian central authority on 08 October 2024 for service.

31. On 8 October 2024, the request for service having been accepted by the FPS, the documents were despatched to the Brazilian central authority for service.

32. On 30 October 2024, the Brazilian central authority rejected the documents for service on the First Defendant on the basis that the form or letter rogatory was not translated into Portuguese.

33. On 8 January 2025, the FPS informed WFW about the rejection by the Brazilian central authority. The message from the FPS was the first time that Claimants found out about the rejection.

34. This was queried by WFW, as the request form was translated into Portuguese.

35. On 27 February 2025, after making enquiries in Brazil, the FPS informed WFW that Brazil required ‘ both the Portuguese Hague Form to be completed and for all the text – list of documents etc to be translated as well ’. The FPS also explained: ‘ I would like to highlight that this requirement for the Hague request form was not mentioned in any format to the Foreign Process Section prior to the documentation going out for service and hence this was not mentioned in the guidance that we initially emailed to you ’.

36. On 13 March 2025, W.E. Cox wrote to WFW saying that the Defendants had received the Second Extension Order and seeking copies of the application materials which led to the granting of the order. The same e-mail also attaches a copy of the Amended Claim Form but it is unclear whether that version of the Amended Claim Form was one already in W.E. Cox’ possession or had been received by at least one of the Defendants in Brazil. In any event, the Claimants do not submit that the Amended Claim Forms had been served on the Defendants by the time of the e-mail from W.E. Cox.

37. After sorting out exactly what was required to satisfy the Brazilian authorities, the request for service was re-submitted by the FPS on 28 March 2025.

38. The Defendants submit that the statutory limitation period expired on a date between 05 and 17 April 2025. The Claimants submit that it expired on a later date, namely 24 April 2025.

39. On 22 April 2025, pursuant to the Order of Mr Justice Foxton permitting service by e-mail as an alternative method (which Cargo Interests have not sought to set-aside) the Claim Form was served on Cargo Interests. The Defendants have not separately challenged the service on them by alternative means pursuant to the Order of Mr. Justice Foxton. In other words, while service was arguably effected on the Defendants outside the period of statutory limitation, they were on any view served within the period of initial validity of a claim form issued immediately prior to the expiry of the statutory limitation period. The Guidance reasonably available to WFW at the time of submitting the documents to the FPS for service

40. Both parties considered it relevant, and I agree, to consider what guidance was reasonably available to WFW (or Ince & Co. before them) when they were taking steps to serve the Defendants under Article 5 of the Hague Convention.

41. There were three principal sources of guidance. i) The specific guidance relating to service in Brazil provided to Ince & Co. on 23 June 2023 by the FPS. ii) The Hague Convention website for Brazil, which provided no real guidance beyond a requirement for translations into Portuguese. iii) The UK government’s website. This provides generic advice relating to service of legal documents overseas rather than being specific to service in Brazil under Article 5.

42. The FPS now publishes on its website a checklist for service pursuant to Article 5 of the Hague Convention, which sets out the steps to be taken to ensure that any request for service complies with the Convention and can be processed and forwarded on a timely basis. The FPS also now publishes a spreadsheet with a specific list of requirements for individual countries with entries as to the specific requirements for Brazil. It is, however, common ground that neither the checklist nor the spreadsheet had been published prior to early 2025. Were there good reasons for the Claimants’ failure to serve the Claim Form within its period of initial validity? The material periods of delay and their cause

43. The Defendants submit that the principal cause of delay was oversight or incompetence on the part of the Claimants’ solicitors. In support of this submission, the Defendant relied in particular on the following matters: i) There is no evidence of Ince & Co. having taken any steps to ensure that progress was being made from the submission of the documents to the FPS on 16 October 2023 until February 2024. ii) Having re-submitted documents to the FPS on 01 March 2024 and then been told on 19 March 2024, that there were errors with the documents, WFW did not collect the documents until 02 April 2024 and they were not re-submitted until 15 April 2024. iii) WFW next chased the FPS on 02 July 2024 and were told on 23 July 2024 that there were further errors with the documents. WFW collected the documents on 24 July 2024. iv) WFW identified that further documents required translation and re-submitted the documents having obtained them on 04 September 2024.

44. The Defendants say that this sequence of events show two key aspects of incompetence or oversight. First, that repeated errors were made in the submissions to the FPS, which resulted in further time being spent before the submissions were reviewed and found to be inadequate. Second, there was no appropriate urgency in addressing the errors with the submissions and ensuring that a compliant submission was made with appropriate urgency especially given the timescale for service under the First Extension Order. In particular, the Defendants say that there were unnecessary delays of weeks at a time at a number of stages of the process even after it had become clear that matters were not proceeding as swiftly as they ought to have and that steps should have been taken to move matters along swiftly.

45. In particular, the Defendants submit, the four witness statements from Ms. Tully do not explain how the errors in the submissions were made or identify where errors identified by the FPS were not actually errors. In relation to the failure to provide translations and the failure to provide the Hague request form in soft copy, the Defendants say this was despite the clear advice provided to Mr. Farach in June 2023 and which would otherwise have been available through sources which the Claimants’ solicitors could reasonably have been expected to consult.

46. The Claimants in their submissions contended that there were five key periods of time to consider when assessing whether there was an unjustifiable failure by the Claimants or their solicitors to progress service of the Amended Claim Form and whether any such failure was causative of the failure to serve the Amended Claim Form before 15 November 2024. i) Period 1: The period of about two weeks from 27 September when the Amended Claim Form was issued and 06 October 2023 when the request for service was submitted to the FPS. During this period, Ince & Co. had made enquiries of the FPS and local lawyers before issuing the request to the FPS. ii) Period 2: The period of about five months between 06 October 2023 and 19 March 2024 (the 1 st FPS Rejection). The Claimants submit that there was no material delay here because it can be inferred that the FPS would have taken the same time to consider the request had it been fully compliant. iii) Period 3: The four-month period between 19 March 2024 (the 1 st FPS Rejection) and 23 July 2024 (the 2 nd FPS Rejection). The Claimants say that the 1 st FPS Rejection would have occurred even if WFW had followed all the guidance reasonably available to them because at least three of the reasons for the rejection concerned matters which had not been the subject of any guidance reasonably available to WFW. iv) Period 4: The period of about five weeks between 23 July 2024 (“the Second FPS Rejection”) and 03 September 2024 when the request for service was re-submitted to the FPS. Again, the Claimants say that this delay would have occurred in any event because the matters which were the cause of the rejection were not apparent from the guidance reasonably available to WFW. v) Period 5: The period between 03 September 2024 (request for service re-submitted to the FPS) and 28 March 2025 when the request for service was re-submitted to Brazil following the original rejection of the documents for the First Defendant by the Brazilian authorities. The Claimants say that this period of delay was caused by the original rejection by the Brazilian authorities which was because of a new requirement which was not known to the FPS and, therefore, could not reasonably be known to the Claimants or WFW.

47. I agree with the Claimant that it is helpful to look at each of the five periods of delay and decide whether there was good reason for the delay and if not whether that delay was causative of the need to extend the period of validity of the claim Form beyond November 2024. In looking at each period, it is necessary to consider the particular criticisms of the Claimants and their solicitors made by the Defendants.

48. So far as period 1 is concerned, there is no significant delay. The Claimants were justified in seeking advice from the FPS and from local lawyers before proceeding to submit documents to the FPS. Accordingly, there was good reason for the period of time which passed during period 1.

49. During period 2, it is possible to criticise Ince & Co. for not following up with the FPS sooner than February 2024. One would have expected Ince & Co. and then WFW to be making enquiries before February as to the progress of Claimant’s request for service in Brazil. However, I am not persuaded that this failure in fact caused any delay to the progress of the Claimants’ request. It is clear from the correspondence that the FPS was operating a system under which they dealt with enquiries as they were received. I am not persuaded that earlier enquiries would have resulted in the FPS reviewing the Claimants’ request any earlier. It is possible that the initial need for certain documents to be re-submitted would have been identified sooner but this does not mean that the FPS would have carried out their first proper review of the documents before mid-March 2024. I am therefore satisfied that there was good reason for the period of delay during period 2.

50. So far as period 3 is concerned, there is no good explanation for why WFW did not collect the documents from the FPS prior to 02 April 2024 and then took until 15 April 2024 to re-submit them. In this regard, there was a lack of urgency. However, it is not possible to determine what delay, if any, this caused in the renewed consideration of the documents by the FPS. So far as errors which led to the 1 st FPS Rejection are concerned, it does seem that mistakes were made by WFW with the documents submitted on behalf of the Claimants. It is less clear to what extent those errors could have been avoided given the guidance then available to WFW as to the documents required to support the Claimants’ request for service under Article 5 of the Hague Convention. I do not consider that the evidence establishes that the mistakes which were made can properly be characterised as negligent or incompetent nor do I consider that the evidence establishes any culpable lack of oversight within WFW. So far as period 3 is concerned and adopting the calibrated approach identified in Hashtroodi , I am satisfied that while explanation for the delay may not lie at the better end of good reasons, there are sufficient reasons to explain this period of delay.

51. So far as period 4 is concerned, the Defendants do not criticise the Claimants for the time taken to re-submit the documents supporting the Claimants’ request. They do criticise the Claimants for the fact that there were further errors with the documents submitted by the Claimants. In this regard, Mr. Richards has set out a detailed explanation in his second witness statement of the steps he would have taken to ensure that documents submitted with a request for service out in Brazil were correct. However, as he properly acknowledges in his third witness statement, the process he describes in his second witness statement was based at least in part on the availability of the checklist and spreadsheet of specific requirements referred to in paragraph 42 above which were not available to the Claimants at the time of the 2 nd FPS Rejection. In any event, it is unclear whether the errors identified by the FPS in relation to the second rejection were ones which WFW could have identified or were a consequence of oversights by the FPS. But, in any event, to the extent that WFW were responsible for the errors, I do not consider that the evidence establishes that the errors with the documents can be properly characterised as negligent or incompetent nor do I consider that the evidence establishes any culpable lack of oversight within WFW. Again so far as period 4 is concerned and adopting the calibrated approach identified in Hashtroodi , I am satisfied that while explanation for the delay may not lie at the better end of good reasons, there are sufficient reasons to explain this period of delay.

52. So far as period 5 is concerned, it is, of course, material that the FPS had considered the documents and were sufficiently satisfied that they met the requirements for service in Brazil under Article 5 of the Hague Convention that they sent the documents to the Brazilian central authorities for service. The evidence also shows that the reasons subsequently given by the Brazilian authorities for rejecting the documents relating to the First Defendants were not known to the FPS and I accept, therefore, could not be known to the Claimants or WFW. There is therefore a good reason to explain this period of delay.

53. Looking at the position overall and applying the tests laid down in Hashtroodi and Brittany Ferries , I am satisfied that the evidence establishes sufficiently good reasons to justify the extension of the period of validity of the Claim Form granted by Knowles J. in the Second Extension Order.

54. I am also satisfied that the granting of an extension of time for the service of the Claim Form by the Second Extension Order was in accordance with the overriding objective. i) The Defendants have a right to be sued by the means of originating process issued within the statutory period of limitation and served within the period of its initial validity. On the Defendants’ case, the statutory period of limitation expires at a date in mid-April 2025. Accordingly, while the Amended Claim Form may not have been served on the Defendants within the statutory period of limitation, it was served within the period of initial validity of a claim form issued immediately prior to the expiry of the statutory period of limitation (on the Defendants’ case). ii) The Defendants each agreed under the general average guarantee and under the general average bond to irrevocably submit to the exclusive jurisdiction of the High Court of England & Wales. iii) This is not a claim which has come as a surprise to the Defendants: a) From 05 November 2018, there were “without prejudice” discussions. b) In April 2019, the General Average Adjustment was issued to the Claimants and the Defendants. c) On 10 March 2020, the Claimants sent the Defendants a detailed letter before action. d) Between October 2021 and April 2023, there was correspondence between Ince & Co. and W.E. Cox about the Claimants’ requests for the Defendants to appoint English solicitors to accept service of the Claim Form, about the intended claim and about the Defendants’ request for security for costs. iv) The Amended Claim Form was issued well in advance of the expiry of the limitation period. This is not a case where the claim form was issued at the last minute. v) The Amended Claim Form was in fact served well within the period of validity of a claim form issued just prior to the expiry of the statutory limitation period (even on the Defendants’ case as to the date of expiry). In this regard, there is force to the Claimants’ submissions that: a) In the circumstances of this case, it would not have been consistent with the overriding objective to have forced the Claimants to issue a fresh claim form in November 2024 and start the process of service again. b) Even if, (which the Claimants dispute), the Defendants have a limitation defence to the claim which would be lost if the Second Extension Order is upheld, the greater prejudice in this case would be the loss by the Owners of a prima facie valuable claim. Was there a breach of the duty of full and frank disclosure?

55. There is a duty of full and frank disclosure on a without notice application with the applicant being required to make a full and fair disclosure of all material matters. In the event of a breach, the Court has a discretion to continue or re-grant the order if it is just to do so and this is most likely to be exercised if the non-disclosure is less serious or less culpable; Gee on Commercial Injunctions , 7 th ed. at 9-021.

56. The Defendants rely on the following alleged breaches of the duty of non-disclosure: i) The Claimants did not draw to the Court’s attention that the extension sought would extend the period of validity of the Claim Form beyond the arguable time bar. ii) The Claimants did not identify the principles set out in the Brittany Ferries case in their application. iii) The Claimants failed to explain WFW’s incompetence and oversight in the explanation for why the Claim Form was not served on time iv) The Claimants failed to identify the original FPS as to timing on the basis of which the first extension had been received.

57. The Claimants properly accept that it would have been preferable to emphasise the time bar and the legal test as part of their application. But they submit that it can be inferred that in this case the Court was aware of both the possible limitation defence and the relevant legal test.

58. First, the issue of the possible limitation defence was raised in Ms. Khan’s first witness statement at paragraph 38 when the Claimants sought the First Extension Order. Khan 1 was included in a 26-page bundle of exhibits attached to Ms. Tully’s witness statement in support of the second extension application. Ms. Tully cross-referred to other paragraphs of Khan 1 in her witness statement in support of the application for the Second Extension Order. Accordingly, the Claimants say that even if the judge only read Khan 1 at a high-level when considering the second extension application, he would have been aware of the possible limitation defence.

59. Second, the Claimants say that an experienced commercial court judge such as Knowles J. would have been aware of the appropriate test for granting an extension of time in any event.

60. As the Claimants rightly acknowledge, their application for the second extension should have stated more obviously the existence of the potential limitation defence and have expressly set out the legal test to be met if the extension sought was to be granted. However, I am satisfied that to the extent there were breaches of the duty of full and frank disclosure, they were minor breaches and do not justify setting aside the Second Extension Order.

61. So far as the Defendants’ third and fourth criticisms of the Claimants’ application are concerned, it follows from my findings above that there was no failure on the part of the Claimants to disclose any incompetence or oversight on the part of WFW or Ince & Co. Further, I do not regard the failure to disclose the e-mail advice from FPS dated 20 June 2023 as a breach of the duty of full and frank disclosure, which would justify setting aside the Second Extension Order. The original advice is referred to in Khan 1 at paragraph 35 such that the failure of Ms. Tully to refer to the advice in her first witness statement is a minor breach at most.

62. For all the above reasons, I do not consider that there was any failure by the Claimants in their duty of full and frank disclosure or to explain the reasons for the second extension application, which justifies setting aside the Second Extension Order. Conclusion

63. For the reasons set out above: i) I dismiss the Defendants’ application to set aside the Second Extension Order; and ii) I dismiss the Defendants’ application (i) to set aside the Claim Form and service thereof and (ii) for a declaration that the Court will not exercise jurisdiction to try this action.

64. I would be grateful if the parties could liaise over a final order reflecting the terms of this judgment for my approval.