In AAA v BBB [2025] EWHC 1647 (Comm), Henshaw J discharged a worldwide freezing order (WFO) because the arbitration claim form for the underlying proceedings it was intended to support had expired, and the claimant failed to meet the strict CPR 7.6 test for a retrospective extension of time. This was compounded by the claimant’s failure to rely on the correct provisions of the CPR, and material non‑disclosure at the without notice hearing.

The case demonstrates the strictness of the rules setting out time limits for service of the claim form and for seeking extensions to that time. It also underlines the seriousness of the consequences of failure to comply with the duty of full and frank disclosure at without notice hearings.

Facts

In December 2024, the claimant, AAA, filed an arbitration claim form, and an application for a WFO in support of the intended Latvian-seated arbitration under s.44 Arbitration Act 1996.

The claim was sealed on 18 December 2024. However, it was never served. Arbitration claim forms must be served on the defendant within one month, so the claim form expired on 17 January 2025.

The WFO application was heard without notice on 7 February 2025. The order was granted. While the arbitration claim form was included with the application, the judge’s attention was not drawn to the fact that it had expired.

The claimant contacted the Foreign Process Section (FPS) on 28 February 2025 to enquire about service of both the WFO and the arbitration claim form. In a response on 25 March 2025, the FPS noted that the claim form had expired and asked whether the claimant had an order extending time.

On 9 April 2025, the claimant applied for a retrospective extension of time to serve the arbitration claim form. That application was granted on the papers. 

At the return hearing for the WFO, BBB applied to set aside both the WFO and the extension of time for the claim form. 

Decision 

In a robustly reasoned decision, Henshaw J decided that, as time for serving the claim form had expired by the time the WFO was granted and the grounds for allowing a retrospective extension were not satisfied, the WFO had to be discharged and the extension set aside. 

CPR 7.6 requires that a claimant who seeks an extension of time for serving a claim form should do so before that claim form expires. If the claimant makes such an application after the claim form has already expired, the rules state that they must issue the application promptly and must have taken all reasonable steps to serve in time but been unable to do so. The court does not have inherent jurisdiction to extend time for service – the provisions of rule 7.6 must be met.

In this case, the arbitration claim form had expired on 17 January 2025. The application to extend time for service was made retrospectively on 9 April 2025. Therefore, AAA would have to demonstrate to the court that it had taken all reasonable steps to serve in time but been unable to do so.

That was not the case. Henshaw J did not accept AAA’s argument that it had to delay serving the claim form until after the WFO application was heard to avoid tipping off BBB, and that this meant there were no “reasonable steps” that it could have taken to serve. 

The judge found that, far from having been unable to serve the claim form, AAA had chosen not to serve it and had taken no steps to do so – this was the antithesis of having taken all reasonable steps. Henshaw J said it is not for a claimant to determine when it would be reasonable to serve the claim form. The rule for seeking a retrospective extension requires the claimant to have been “unable” to serve, and it would be inconsistent if the rule could then apply where a claimant was able to serve but chose not to.

Moreover, the extension application in this case was not “prompt”: it was issued over 2½ months after expiry, under the wrong provision of the CPR, and without the required evidence. Indeed, the claimant had not even acted promptly after the FPS queried the expiry of the arbitration claim form on 25 March 2025.

The errors were compounded by the claimant’s material failures in disclosure when seeking both the WFO and the extension of time. It ought to have pointed out as part of its application for an extension that the court’s power to grant such an extension was limited by rule 7.6(3). And it was a material non‑disclosure in the WFO application to have failed to inform the judge that the arbitration claim form had already expired. This, Henshaw J said, was omission of a “fundamental” fact.

Comment

WFOs are a powerful tool in the arsenal of the English court. Applications are usually heard without notice precisely because of the need to avoid tipping off the respondent, who by definition is someone the applicant believes is likely to unjustifiably dissipate their assets. But in this case, it can be seen that the desire to avoid tipping off led to incorrect procedural decisions that have ultimately undermined the claimant’s position. While it is perhaps understandable that the claimant did not want the defendant to become aware of the arbitration claim form before the WFO was in place, this did not excuse the erroneous course of action adopted. The claimant should have applied for an extension to serve the arbitration claim form before it expired, and ought to have drawn the court’s attention to the fact of expiry at the WFO application hearing.

Applicants and their legal representatives should be aware that the CPR contains some strict time limits. While the English court has a wide margin of discretion in many matters, and the inherent jurisdiction to grant many orders, this will not always be the case. Henshaw J’s careful analysis of CPR rule 7.6(3) demonstrates the need to pay close attention to the wording of the rules. In this instance, the rule states “the court may make such an extension only if…” the requirements in the provision are met, so there is no jurisdiction to make an extension outside of this provision.