EXTENSION OF TIME GRANTED: DEFENDANT'S OBJECTION REGRETTABLE
This post looks at a case where the claimant served the particulars of two days late. The judge stated that it was “the clearest” case for an extension of time. He also regarded the defendants’ taking of the point as “regrettable”
There is a short report of the case of Raayan Al Iraq Co Ltd –v- Trans Victory Machine Inc on Lawtel. This was a decision of Andrew Smith J on the 23rd August. Proceedings were issued and the claim form served. Under CPR r.58(1)(c) the claimant had 28 days after the filing of an acknowledgment of service to file a defence. The particulars were served two days late due to an oversight.
The defendant refused to agree to an extension of time and the claimant applied to court for an extension.
The judge held that the old checklist under CPR 3.9 had been replaced by a requirement to consider all the circumstances of the case. Although the checklist had gone the old matters within in are still of relevance.
The change in the rule and attitude of the courts did not mean that relief should be refused where that would be a disproportionate response and would give the defendants an unjustified windfall.
- The slight delay had not affected the administration of justice.
- The application for an extension had been made promptly.
- The failure to comply was not intentional and an explanation had been given.
- The mistake was regrettable but not egregious.
The court did not view with favour the suggestion that the claimant should be left to a claim against their professional advisers.
The summary concludes that the circumstances of the case for an extension of time were clear. The solicitors’ error should have been inconsequential and the application dealt with at minimum expense on paper.
The defendants’ attempt to exploit the error was regarded as “regrettable”
COMMENTARY
Observers will note a different attitude here to some other cases reported on CPR 3.9. See
http://civillitigationbrief.wordpress.com/2013/07/01/service-faults-and-the-match-is-over/
And in particular
It remains to be seen what the prevailing judicial attitude will be.
The report I have does not state what order was made as to costs (people always ask me). I have applied for a copy of the transcript and will deal with this case more fully when it is available.