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Articles | Mon 4th Apr, 2022
You can imagine our excitement as we gathered round the 1CL telly this week, agog to view the new Marvel/Disney offering, Moon Knight, a rip-roaring yarn featuring the extremely poor behaviour of some of the Ancient Egyptian pantheon. And speaking of pantheons, over in the Court of Appeal their lordships were grappling with a case involving a knock off bust of Alexander the Great, whilst the High Court was considering whether to allow two further Claimants to join the pantheon in the diesel emissions case. Outside the court system, Thomas Cook’s creditors are being encouraged to make themselves known online here, and we hear tell that some of them are even being paid, albeit only a third or so of the value of their claims. And in other, even more exciting news, the 7th edition of Saggerson on Travel Law is rumoured to be hitting the shelves of all good bookshops in only a few months’ time – authored, for this edition, by no fewer than six of the 1CL team. Now there’s a pantheon for you.
Suspect Artefacts, Suspect Excuses: When does the Pandemic Justify an Extension of Time?
Qatar Investment and Project Development Holding Company & Anor v Phoenix Ancient Art SA  EWCA Civ 422
In a case involving the sale of an allegedly fake bust of Alexander the Great, the Court of Appeal has been called on to decide whether the claimants’ reason for seeking an extension of time for serving proceedings was the genuine article.
The claimants, a Qatari investment company and its CEO, Sheikh Hamad Bin Abdullah Al Thani, purchased the bust in January 2014 from Phoenix Ancient Art SA, a Swiss arts dealer. They paid US$3 million, believing it to be an artefact from ancient Greece, before becoming suspicious that it was a fake.
Proceedings were issued just before limitation in January 2020. Pursuant to CPR 7.5, the claimants had six months to serve out of the jurisdiction.
In or around the middle of June 2020 (one month before service was due) the claimants’ solicitors discovered that the Foreign Process Section of the High Court was closed due to the pandemic and it was unknown when it would reopen. There was by then, already a large backlog of cases awaiting service outside the jurisdiction. It subsequently emerged that the FPS had been suspended since 16th April 2020 (and it remained closed until 28th July 2020).
On 26th June 2020, the claimants sought an extension of time for service and on 17th July 2020, a four month extension was granted ex parte by Master Gidden. The Claimants subsequently submitted their application for service out of the jurisdiction to the FPS on 11th August 2020 and the Defendant was served in Switzerland on 8th September 2020, 28 days later.
The Defendant successfully applied before Master Gidden to set aside the order extending time for service and the decision was upheld on appeal by William Davis J.
Court of Appeal decision
The claimants brought a further appeal on the grounds that the closure of the FPS and the general disruption to business caused by the pandemic prevented them from serving within the ordinary six month period.
As to the closure of the FPS, the Court of Appeal noted the Master’s factual findings that the need for an extension was due to a number of issues unconnected with the pandemic; indeed, the claimants did not know the FPS was closed until late June. Giving the lead judgment Whipple LJ held that the claimants’ argument – that the closure of the FPS would have prevented service in any event – was beside the point:
‘…the Court’s task when faced with an application for extension of time under CPR 7.6(2) is to determine the reasons for the application for extension. That is a fact-finding exercise rooted in the evidence provided to the Court. Once the facts are found, the Court evaluates the reasons as good (i.e., are they sufficiently good to justify extension?) or not so good. The Claimants are wrong to suggest that the Court should investigate what the position would or might have been “in any event”. That is a different exercise altogether.’
The claimants also argued that general business disruption caused by the pandemic had ‘materially contributed’ to their delay in preparing to serve proceedings. It was argued, a little optimistically, that evidence was ‘not necessary’ in this case. The Court disagreed:
Evidence is required to support an extension of time: see CPR 7.5(4) and PD7A paragraph 8, see above. In my judgment, that is true of pandemic-related reasons just as much as other sorts of reasons. I agree with Butcher J in STA v OFY. The pandemic had different effects on different businesses; some thrived while others struggled. The Court must be given sufficient detail of the effects of the pandemic in the particular case, in order to make the necessary findings of fact and evaluate the merits of the application. I therefore reject Mr Stewart’s submission that the Court should have taken or can now take judicial notice of pandemic-related disruption as a reason for the extension application. The Court cannot make assumptions about the nature and extent of business disruption, and specifically, the effect that any such disruption had on the conduct of a particular case.
The Court went on to conclude that there was no evidence that the pandemic had caused delays in this case. Accordingly, the appeal was dismissed.
This may seem a harsh result given the undoubted difficulties the claimants faced in serving proceedings both due to the prolonged closure of the FPS and the challenges of adjusting to remote working in the early months of the pandemic. The decision emphasises that the courts have little sympathy for claimants who leave service to the last minute. And if parties intend to rely on the consequences of the pandemic as a reason for delay, specific evidence is needed.
The applicant needs to show that but for the particular reason advanced, the deadline would have been met. If it would have been missed anyway, they cannot rely on other supervening events (which happened to also render the deadline impossible) as a ‘reason’ for needing an extension.
About the Author
Called in 2010, Tom Collins is ranked in the Legal 500 as a specialist in Travel Law. He has considerable experience across a wide range of travel and private international law disputes and has advised claimants and defendants in multi-party actions.
Augmenting the Pantheon: Adding a New Claimant Pre-service
Rawet & Ors v Daimler AG & Ors  EWHC 235
April is the cruellest month. Certainly when it comes to expenses for the humble legal practitioner, digging pocketwise for renewals for insurance, regulatory authorisation and of course for the brand new edition of the White Book. And, regrettably, despite its high price point, this year’s edition of the civil litigator’s bible is already out of date.
In the commentary at 17.1.1 is the following: “CPR r.17.1 alone does not permit the addition of a new claimant but instead contemplates the actions of an existing party as appears on the claim form. So an existing party that seeks to introduce a new party cannot do so only by amending their own statement of case and “amendments” purporting to join additional parties but not made in conjunction with r.19.4 are liable to be struck out under CPR r.3.4”
Last year, Mann J in Various Claimants v G4S Plc  EWHC 524 (Ch) gave the judgment cited for this proposition. Although he went on to give the claimants permission to appeal, they chose not to, apparently for other reasons.
Rather unusually, however, in the recent case of Rawet & Ors v Daimler AG & Ors  EWHC 235 (QB), an application was made by the claimants for a declaratory remedy – that Mann J’s determination in G4S was wrong. The issue was being decided by a court at the same level – first instance in the High Court (albeit in Rawet the court was constituted as a Divisional Court before Mr Justice Picken and Lord Justice Dingemans).
The claim concerned emissions from Mercedes diesel vehicles, and there were a large number of claimants and potential claimants. The defendants had agreed a general time extension but consented to one claim form being issued in order to seek clarification of the law on the issues seemingly already decided in G4S: first, that rule 17.1(1) allowed the addition of claimants to a claim form without permission, provided it was done before service; second, that the requirement in rule 19.4(4) that the addition of a claimant required their written consent could be satisfied by their legal representative signing the statement of truth on the claim form on their behalf. The defendants did not oppose the application but did not agree with the claimants’ proposal that G4S was wrongly decided.
As a quick reminder, rule 17.1(1) allows that “a party may amend his statement of case at any time before it has been served on any other party”. Rule 17.1(2) governs the process for amendments after service. Rule 17.1(3) then goes on to say “[i]f a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4.”
Rule 19.4(1) begins “[t]he court’s permission is required to remove, add or substitute a party, unless the claim form has not been served.” The subsequent paragraphs under 19.4 go on to set out formal processes for adding a party. Rules 19.2(2), (3), (5) and (6) expressly govern applications and orders, and clearly therefore read back to paragraph (1). Paragraph (4), however, does not and simply says: “[n]obody may be added or substituted as a claimant unless – (a) he has given his consent in writing; and (b) that consent has been filed with the court.”
The underlined passages in the above formed the key identical problems for Mann J G4S and the Divisional Court in Rawet. It is very easy to see from the drafting how one could have difficulty. Rule 17.1(1) (unlike rule 17.1(3)) does not say explicitly that it includes amendments which add new parties – it is only available to an existing party, and it is only in respect of ‘his statement of case’ – nor (again unlike rule 17.1(3)) does it point to rule 19.4. Rule 19.4(1) for its part excludes pre-service additions of new parties from its scope – so it is unclear how these are intended by the rules to be done. Rule 19.4(4) then seems to stand alone making a general point about additions of claimants, without declaring itself to belong within the scope of 19.4(1).
Mr Justice Picken gave the leading judgment in Rawet, agreed with the claimants that Mann J had been wrong in G4S. He enumerated a number of reasons for this conclusion which are best read at source in the judgment itself but overall, he considered that there should not be a more restrictive ability to amend a claim form at pre-service than at post-service stage – defendants will not yet have been troubled to respond. He disagreed with the idea that because 17.1(1) referred to a party amending ‘his statement of case’, an amendment could not be made to bring in an entirely separate claim; in Picken J’s view that was a conflation of a document – a statement of case – with its contents – the concept of a claim. He was of the view that 17.1(1) could allow an existing claimant to amend his statement of case – the claim form – to add new claimants. That enabled him to deal with the issue of rule 19.4 relatively quickly. In his view, rule 19.4 did not apply to the pre-service situation. The exclusionary wording in paragraph (1) – “unless the claim form has not been served” – applied to the whole of the rule (Mann J had decided that the subsequent paragraphs were not all automatically disapplied by the qualification in paragraph (1)). He would have agreed, however, if rule 19.4 was relevant that a statement of truth by a solicitor would not have been good enough.
Lord Justice Dingemans in a five paragraph consenting judgment agreed, but perhaps had some slight reservations about the effects of the conclusion – that if 19.4 does not apply to pre-service amendments, then formal written consent is not needed by new claimants being joined. His strong advice to practitioners was that they “ensure that the claimant added to the claim form has given informed consent to be added to the claim form, and that the name of the added claimant is accurately set out.”
There are now therefore two conflicting judgments at the same level on the scope of rule 17.1(1). Because the defendants in Rawet played little part in the application, and indeed did not formally oppose it, the case will not go on to an authoritative determination by the Court of Appeal. Of course, any case which takes the point in issue and prays in aid the decision in G4S over Rawet will face steep challenges.
We will, however, have to wait until 2023 for the commentary in the White Book to catch up.
About the Author
Tom Yarrow was called in 2018. Before joining chambers Tom was a civil servant working in various government departments, including as a policy advisor on the UK-EU Withdrawal Agreement at the Department for Exiting the European Union. During pupillage he worked with the Government Legal Department, practising in public law in the fields of public international law, justice and security, human rights and immigration. He has regularly appeared in judicial review proceedings for the Secretary of State for the Home Department, and as a member of the Attorney General’s ‘junior junior’ scheme, he is able to take instructions directly from government clients. He now practises in all of chambers’ practice areas and is an enthusiastic and valued member of the travel team.
We’re always only too pleased to learn from our friends in the Commonwealth, and whilst examining the latest in our occasional series of Cases From Down Under, we made a careful note never to ignore the stunt clown. Alas, in Archer v Garcia  VSC 57, the Claimant, a freestyle motocross rider, had pooh poohed the clown’s concerns, with disastrous results. Mr Archer, you see, had been performing at a showground, initially without incident. But after he had performed his first set, the ramps he had been using had been repositioned for the use of other performers. When Mr Archer returned to perform a second set, a clown had tried to warn him that the distance between the ramps was too short to allow him to perform safely. He waved the man aside, however, and attempted the jump, landing (as a result of the shortened distance between the ramps) on the ground beyond the down ramp rather than on the ramp itself. The Supreme Court of Victoria held that even if the occupier of the showground had breached his duty to Mr Archer, he had voluntarily assumed the risk of injury in disregarding the clown’s warning. A sad note on which to end this week’s Weekly Roundup; and a cautionary tale for those representing Claimants with cases involving specialist independent contractors.
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