The claimant appealed against an order refusing an extension of time for service of her particulars of claim. She had made the application before the period expired.
Held: The rules made a clear distinction between applications made before time expired and those made afterwards. For the latter the rules laid down a checklist. It was not appropriate to look to the same list when considering timeous applications, because a difference in principle applied. The court should look at the prejudice to the defendant which arose from the particular delay contemplated, and not at any pre-existing prejudice. An in-time application for an extension of time (in this case for service of the particulars of claim) was not, and should not be treated as, an application for relief from sanctions.
Dyson LJ (with whom all members of the court agreed) held that when the application to the court for an extension of time was made before the expiry of the time there was no reason to import the Part 3.9(1) checklist, but that the discretion of the court: ”It is clear that Brooke LJ treated Sayers as a relief from sanctions case, or at least closely analogous to such a case. That is because the time for appealing had already expired when the application for an extension of time was made. I see no reason to import the rule 3.9(1) check lists by implication into rule 3.1(2)(a) where an application for an extension of time is made before the expiry of the relevant time limit. There is a difference in principle between on the one hand seeking relief from a sanction imposed for failure to comply with a rule, practice direction or court order, where such failure has already occurred, and on the other hand seeking an extension of time for doing something required by a rule, practice direction or court order before the time for doing it has arrived. The latter cannot sensibly be regarded as, or even closely analogous to, a relief from sanctions case. If the draftsman of the rule had intended that the check list set out in rule 3.9(1) should be applied when the court is exercising its discretion under CPR 3.1(2)(a) in such a case, then he could and, in my judgment, would have said so. By not spelling out a check list in rule 3.1(2)(a), it seems to me that the draftsman was intending that the discretion should be exercised by simply having regard to the overriding objective of enabling the court to deal with cases justly including, so far as practicable, the matters set out in rule 1.1(2).’
Judges:
Sir Andrew Morritt VC, Hale, Dyson
Citations:
Times 13-Feb-2003, Gazette 10-Apr-2003, [2003] EWCA Civ 299, [2003] 1 WLR 1577
Links:
Statutes:
Civil Procedure Rules 3.1(2)(a) 3.9(1)
Jurisdiction:
England and Wales
Citing:
Cited – Totty v Snowden; Hewitt v Wirral and West Cheshire Community NHS Trust CA 31-Jul-2001
Where a party had served a claim form, but then failed to serve the particulars of claim within the appropriate time limit, the court had full discretion to allow an extension of time for service. It had been argued that the same rules applied both . .
Cited by:
Cited – Caterpillar Logistics Services (UK) Ltd v Huesca De Crean QBD 2-Dec-2011
The claimant sought an order to prevent the defendant, a former employee, from misusing its confidential information said to be held by her. Her contract contained no post employment restrictions but did seek to control confidential and other . .
Cited – Kaneria v Kaneria and Others ChD 15-Apr-2014
The parties were embroiled in a company dispute with allegations of conduct prejudicial to minority shareholders. An application was now made for sanctions for a failure to comply with court directions.
Held: Unless and until a higher Court . .
Cited – Hallam Estates Ltd and Another v Baker CA 19-May-2014
‘The paying parties appeal against a decision of the High Court reversing a decision of the costs judge, whereby he declined to set aside his earlier order granting an extension of time for serving the points of dispute. The principal issues in this . .
Cited – Lachaux v Independent Print Ltd and Others QBD 29-Jun-2015
Orders allowing extension of time for service of the Particulars of Claim. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 07 June 2022; Ref: scu.179122
