A two-stage test is to be applied by a court, first ascertaining if there are good reasons for extending time and second weighing all relevant factors and balancing the hardship between the parties before deciding whether the writ should be extended as a matter of discretion. Lord Brandon referred to an ‘accrued right of limitation’ when considering the correctness of a right being extended. It is not possible to define or circumscribe the scope of the expression ‘good reason’.
Lord Brandon (with whom the other members of the House of Lords agreed) formulated three categories of cases in which an application for an extension of time for service might be made. He said: ‘Category (1) cases are where the application for extension is made at a time when the writ is still valid and before the relevant limitation period has expired. Category (2) cases are where the application for extension is made at a time when the writ is still valid but the relevant period of limitation has expired. Category (3) cases are where the application for extension is made at a time when the writ has ceased to be valid and the relevant period of limitation has expired’ and ‘Good reason is necessary for an extension in both category (2) cases and category (3) cases. But in category (3) cases the applicant for an extension has an extra difficulty to overcome, in that he must also give a satisfactory explanation for his failure to apply for extension before the validity of the writ expired. The decision whether an extension should be allowed or disallowed is a discretionary one for the judge who deals with the relevant application. Jones v Jones shows that, in exercising that discretion, the judge is entitled to have regard to the balance of hardship. In doing so, he may well need to consider whether allowing an extension will cause prejudice to the defendant in all of the circumstances of the case.’
Lord Brandon
[1987] AC 597, [1987] 2 Lloyds Rep 1, [1987] 2 WLR 1053
England and Wales
Cited by:
Cited – Binning Bros Limited (In Liquidation) v Thomas Eggar Verrall Bowles (a Firm) CA 11-Nov-1997
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Lists of cited by and citing cases may be incomplete.
Updated: 24 August 2021; Ref: scu.241595 br>