WHAT A DIFFERENCE A DAY MAKES: APPLYING AHEAD OF TIME AVOIDS DENTON PRINCIPLES
In Peak Hotels & Resorts Ltd -v- Tarek Investments* (Ch D 12/03/15) Hildyard J made an order extending time for providing security for costs. The case highlights (a) the importance of applying before the date for compliance has expired and (b) that it is prudent to provide full evidence in support of any application to extend time.
The claimant was ordered to provide security for costs. Shortly before the date for compliance the claimant applied for an extension of time. The defendant made a counter-application to strike out the action on the grounds that the claimant had supplied insufficient evidence. The claimant argued that, in the light of the defendant’s application, it should have further time to respond to the strike out application and give evidence in support.
- An application made ahead of the date of breach is not subject to the Denton/Mitchell criteria.
- It is prudent to give full and proper explanations and evidence in support of an application to extend time.
- The claimant’s application was on frail grounds. Its application for an extension of time to file further evidence was reliant upon the defendant’s application.
- The evidence in support was not extensive.
- Where an application was made before the deadline the strict approach in Denton and Mitchell did not apply.
- In an “ahead of time” application the court was guided by the overriding objective. The criteria in Kaneria -v- Kaneria (“Guidestone”)  EWHC 1165 applied.
- The interests of justice required that the claimant be given further time to comply.
- The claimant offered to make a substantial part-payment, this was ordered on a peremptory basis.
- Similarly an extension was granted for the balance, again on a peremptory basis.
- When is an application made? A matter that could be of some importance.
- The criteria to be applied when a party makes an application ahead of the date of the breach.
- Making an application before the date of default saves the day.
- “In time” application for extension of time to serve particulars of claim refused: a danger area to watch.
- Surviving Mitchell: If you cannot comply with a rule or practice direction then make an application before it is breached.
*This summary is based on the Lawtel note.