Cavadore Ltd v Mohammed Jawa

Hearing date: 19 May 2025

Approved Judgment

This judgment was handed down remotely at 2pm on 29 August 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The Applications

The second defendant applied on 3 January 2025 pursuant to CPR Part 11 for an order setting aside:

(i) three without notice orders extending time for service of the claim form:

(a) the order of Deputy Master Bowles dated 17 August 2022 ( the First Extension Order);

(b) the order dated 1 December 2023 ( the Second Extension Order); and

(c) the order dated 19 June 2024 ( the Third Extension Order); (together the Extension Orders); and

(ii) setting aside service of the Claim Form ( the Set Aside Application).

The claimant has since issued three applications:

(i) an application dated 28 February 2025 pursuant to CPR7.6(1) seeking an extension of time for service of the claim form on the defendants to 1 September 2025 ( the February 2025 Extension Application);

(ii) an application dated 8 April 2025 pursuant to CPR 6.15( 1) or 6.16(1) seeking permission to serve by alternative means or an order that service is dispensed with together with an order pursuant to CPR 7.6(( 1) or 3.1(2)(a) extending time for service of the Claim Form and Particulars of Claim ( the Alternative Service Application); and

(iii) an application dated 6 May 2025 seeking orders about service on the first defendant.

Witness Statements of:

(i) Caroline Phipps of LK Law LLP ( LK), solicitors for the second defendant dated 3 January 2025 ( Phipps 1);

(ii) Patrick Murray of DMH Stallard LLP ( DMH), solicitors for the claimant dated 8 April 2025 ( Murray 2)

(iii) Caroline Phipps dated 28 April 2025 ( Phipps 2); (iv) Patrick Murray dated 6 May 2025 ( Murray 3); and (v) Caroline Phipps dated 13 May 2025 ( Phipps 3); have been signed in connection with the Set Aside Application.

In addition on 23 February 2025 Patrick Murray signed a witness statement in support of the 2025 Extension Application, ( Murray 1).

The Set Aside Application

I heard the Set Aside Application, the February 2025 Extension Application and the Alternative Service Application on 19 May 2025.

The first defendant is not a party to the Set Aside Application and did not appear at the hearing.

The Parties and the Claims

The first and second claimants are companies incorporated in Cyprus. The second defendant is a company registered in Riyadh in the Kingdom of Saudi Arabia ( KSA) (Commercial Registration Number 1010348413). The first defendant is Mohammed Jawa; he was, but is no longer, a director and shareholder of the second defendant.

The claimants' claims arise from franchise agreements entered into between the second claimant and the defendants relating to restaurants operated under the “Nozomi” brand in KSA and elsewhere. The franchise agreements provided that the governing law was English law and that the English courts would have exclusive jurisdiction.

In summary the claimants say that:

(i) the second claimant terminated the franchise agreements for breaches of those agreements on 13 November 2017, if they had not already been terminated by the defendants;

(ii) the second defendant held certain trade marks on trust for the first claimant and acted in breach of fiduciary duty;

(iii) the first defendant acted in breach of the terms of a power of attorney and in breach of fiduciary duty and diverted the trade marks to his own and/or to the second defendant's benefit; and

(iv) the defendants and a third party are parties to an unlawful means conspiracy and/or have unlawfully interfered with the claimant's economic interests and continue so to do so.

The claimants seek against the defendants:

(i) injunctions in relation to the trade marks;

(ii) equitable compensation;

(iii) an account of profits;

(iv) payment under a contractual indemnity within the franchise agreements; and

(vi) damages in an amount in excess of £22 million for alleged breaches of terms of the franchise agreements.

On 29 June 2018 the claimants brought a claim against the defendants ( the First Proceedings). Permission to serve out was granted on 4 July 2018. The claimants purported to serve the proceedings in KSA and went on to apply for judgment in default on 14 August 2018. Judgment was granted on 10 October 2018.

On 16 November 2018, LK Law ( LK) agreed to accept service on behalf of the defendants after that date. The claimants refused to agree to set aside judgment. The defendants applied to set aside the judgment. In a reserved judgment dated 12 December 2019 following an inter partes hearing Deputy Master Bowles concluded that the claimants had failed properly to serve the First Proceedings under the laws of KSA. He ordered that the default judgment be set aside, and dismissed the First Proceedings.

As to costs:

(i) Deputy Master Bowles ordered the claimants to pay the majority of the defendants' costs and ordered an interim payment of £90,000 by 4 February 2020;

(ii) the claimants did not make that payment;

(iii) on 20 April 2020 the defendants served a notice of assessment and, on 13 May 2020, obtained a default costs certificate in the amount of £210,036.61;

(iv) the claimants did not pay, despite attempts to enforce, including by bringing winding up proceedings in Cyprus.

On 17 January 2020 the claimants started a second claim ( the Second Proceedings). The claimants purported to serve on LK, but were told that LK was not authorised to accept service. The Second Proceedings were never validly served.

On 11 February 2021 the claimants issued the present proceedings ( the Present Proceedings). An application for service out and for service by alternative means was made on 10 March 2021. The application was supported by the witness statement of Timothy Ashdown dated 9 March 2021 ( Ashdown 1), which referred to having been told by the FPS that service in KSA would take 12 months or more. That evidence in support did not refer directly to the unpaid costs from the first proceedings.

At a hearing of the application on 1 April 2021, Master Teverson asked about the costs position and was told £90,000 was outstanding. The Master required the claimants to undertake to pay £90,000 as a condition of serving the claim out. Shortly after the hearing the claimants' counsel emailed the Master drawing attention to the fact that (unknown to him at the hearing) the £90,000 figure had been superseded by the default costs certificate in the amount of £210,036.61. At a further hearing on 27 April 2021, Master Teverson made an order permitting service out without any payment condition, apparently on the basis that the claim might otherwise be stifled ( the Teverson Order).

Upon becoming aware of the Teverson Order, on 18 June 2021, the defendants applied to challenge jurisdiction and, amongst other things, for an order reinstating the claimants' obligation to pay the outstanding costs as a precondition of serving the claim.

That application was listed to be heard by Deputy Master Arkush on 26 August 2021. With encouragement from the Deputy Master the parties agreed the substantive terms of an order but the Deputy Master ruled on costs. At [18] of his judgment, he expressed himself to be “perturbed” that the position as to outstanding costs was not fairly disclosed to Master Teverson at the 1 April 2021 hearing and at [20] stated that he hoped such conduct would not be repeated. The defendants' costs were ordered to be paid by the claimants and were summarily assessed at £55,000.

The Order following that hearing was dated 20 September and sealed on 23 September 2021 ( the Arkush Order). Pursuant to the Arkush Order the Teverson Order was set aside; permission to serve out in accordance with CPR6.40(3)(a) and/or (c) was granted and the time for service was extended to 1 September 2022. The claimants were required to pay previous costs liabilities totalling £236,871.64 and the assessed costs of £55,000 (together the Outstanding Costs) by 25 September 2021, failing which the claim would be struck out automatically on 9 October 2021. The proceedings were stayed until the Outstanding Costs were paid.

On 24 September 2021 DMH sought guidance from the FPS and were told on 27 September 2021 that the length of time for service in KSA could be 12 months or more from when documents arrive in KSA and were given guidance about the translation and assembly of documents and how they must be listed in form N224.

On 24 September 2021 the claimants applied to extend time for payment by two days until 27 September 2021. That was followed by a second application on 27 September 2021 for an extension until 8 October 2021. By 9 October 2021, the Outstanding Costs had still not been paid. On 23 November 2021, the claimants sought to amend their earlier application alternatively to seek relief from sanction.

All three applications came before Deputy Master Francis. In his judgment dated 13 December 2021 he:

(i) concluded that the explanation advanced for the 24 September application was “wrong and misleading”;

(ii) concluded that the 27 September application failed to correct that misleading impression;

(iii) expressed his surprise that no attempt had been made to explain, and apologise...