"IN TIME" APPLICATION FOR EXTENSION OF TIME TO SERVE PARTICULARS OF CLAIM REFUSED: A DANGER AREA TO WATCH
In Frontier Estates -v- Berwin Leighton Paisner (Ch D 30/10/2014)* John Male QC upheld a decision not to grant an extension of time for service of the particular of claim. What makes this case important is that the application was made ahead of time. An extension was refused under CPR 3.1(2)(a)
The claimant made an application of time for extension of service of the particulars of claim. The application was made prior to the time for service elapsing. The Master had, wrongly, decided the application under CPR 3.9 when it should have been heard under 3.1(2)(a) and refused the application.
THE DECISION ON APPEAL: EXTENSION REFUSED EVEN IF HEARD UNDER CPR 3.1.(2)(a)
The judge held that the Master had considered the application under the wrong rule. However the decision not to grant an extension was upheld.
- Everything had happened last minute on the claimant’s side.
- There had been no pre-action protocol letter.
- The claim was issued just before the expiry of the limitation period and the claim for had been served and the application made at the last moment.
- There had been sufficient information for the claimant to draft a pre-action protocol letter and the claimant had been in a position to formulate particulars of claim for some time.
- There was no adequate explanation for the delays.
- The claimant’s witness statement in support had only been served three days before the hearing.
- The defendant would suffer greater prejudice if the claim were to proceed.
- This was not a case of a defendant gaining a windfall by being able to rely on a limitation defence. The limitation period existed to protect defendants from stale claims.
- The master had been correct in his conclusion. He was troubled by the lack of evidence.
- Although the master had proceeded under the wrong provision (CPR 3.9 rather than 3.1.(2)(a)) his conclusion had been correct.
SO APPLICATIONS IN ADVANCE AND NOT A UNIVERSAL PANACEA
Generally speaking applications made in advance of the date of breach are looked on much more kindly than applications made after the date of the breach. However it is clear that an applicant cannot assume that an extension will be granted. A cogent explanation is always necessary.
- Making an an application before date of default saves the day
- The criteria to be applied when an application is made before the date of breach: The Roberts criteria considered
- Surviving Mitchell 3: Making an application in advance of default
* Reported on Lawtel this morning.