CIVIL PROCEDURE BACK TO BASICS 42: WHY A DAY EARLY IS SO VERY DIFFERENT TO A DAY LATE: THE ROBERT CRITERIA
There is a world of different between a prospective and retrospective application to extend time, or comply with an order. Every litigator has to know about Robert -v- Momentum Services  EWCA Civ 229. An application made in advance means that the Denton criteria do not get a look in. The key date is the date of the application and not the date the matter is heard. However it is a brave (or foolish) litigator who does not attempt to comply with the order in the time leading up to the date the application is heard.
THE ROBERT CASE
The main judgment was given by Lord Justice Dyson (as he then was). The Court of Appeal was considering a case where the circuit judge had overturned the decision of a district judge who had granted an application to extend time for service of the particulars of claim. The circuit judge had allowed the appeal because the district judge had failed to consider the criteria in CPR 3.9.
CPR 3.9 CANNOT BE INTRODUCED INTO “PROSPECTIVE” APPLICATIONS TO EXTEND TIME
The clear finding in Robert was that where an application is made prospectively an extension of time is considered under 3.1.(2) and 3.9 has no relevance.There is no checklist in 3.1.(2) (as there was and is in CPR 3.9). CPR 3.9 cannot be introduced by analogy.
“CPR 3.9 by analogy.
It is notable that Rule 3.1(2)(a) contains no list of criteria for the exercise of the discretion to grant an extension of time. In this respect it is to be contrasted with Rule 7.6, (application for extensions of time for service of the claim form after the end of the period specified by Rule 7.5 or court order), and Rule 3.9, (application for relief from sanctions). I have no doubt that this was quite deliberate. In Totty v Snowden EWCA Civ 1416  4 All ER 577, this court had to consider the interrelationship between Rule 7.4(2) and Rule 3.1(2). At paragraph 46 of his judgment Chadwick LJ said:
“Third, there is no compelling reason of policy why the court should interpret r 7.4(2) and r 7.6 in order to cover a situation to which, on their terms, they are not addressed. As Kay LJ has pointed out, there is a clear rationale for the provisions of r 7.6 in relation to the service of the claim form itself. There is no comparable rationale in relation to the service of particulars of claim, in circumstances in which the claim form has itself been served. There is no reason why that situation should not be left to be dealt with, as a matter of discretion, in the exercise of the powers conferred by r 3.1(2)(a), having regard to the overriding objective. Once the claim form itself has been served, the defendant will know that there is a claim against him; and he will be in a position to invoke the assistance of the court if particulars of claim are not forthcoming within due time.”
In Sayers v Clarke Walker (a firm)  1 WLR 3095, this court had to decide whether to grant an extension of time for appealing after the time allowed for appealing had expired. In giving the leading judgment, Brooke LJ said that, in a case of any complexity, the court should, in deciding whether to exercise its general discretion to extend time under rule 3.1(2)(a), take into account not only the overriding objective in rule 1.1, but also the check list in rule 3.9. That was a case involving allegations of professional negligence against a firm of accountants, and was one of some complexity.
32. Brooke LJ said this:
“19. In very many cases a judge will be able to decide whether to extend or shorten a period of time for complying with a rule, practice or direction without undue difficulty after considering the matters set out in CPR52PD, para 5.2. In more complex cases, of which this is undoubtedly one, a more sophisticated approach will be required.
21. In my judgment, it is equally appropriate to have regard to the check-list in CPR r 3.9 when a court is considering an application for an extension of time for appealing in a case of any complexity. The reason for this is that the applicant has not complied with CPR r 52.4(2), and if the court is unwilling to grant him relief from his failure to comply through the extension of time he is seeking, the consequence will be that the order of the lower court will stand and he cannot appeal it. Even though this may not be a sanction expressly “imposed” by the rule, the consequence will be exactly the same as if it had been, and it would be far better for courts to follow the check-list for cases where sanctions are implied and not expressly imposed.”
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).”
ANY PREJUDICE TO BE CONSIDERED IS THAT CAUSED BY THE EXTENSION NOT “GENERAL” PREJUDICE
“It seems to me that the correct approach is to concentrate on prejudice that has been and/or will be caused to the defendant by the failure to serve the particulars of claim in time. Most applications under rule 3.2(1)(a) are for relatively short extensions of time for taking some step in the proceedings. The present case is a good example. It would be very surprising if, when dealing with such applications, district judges were required to embark on what could be the quite complex exercise of investigating what prejudice the defendant has suffered at earlier stages in the proceedings, or before proceedings have been issued at all. I accept that there may be circumstances in which the prejudice suffered as a result of the failure to act in time will be qualitatively affected by earlier prejudice. But as a general rule, I would hold that the focus of attention should be on the prejudice occasioned by the failure itself, and not on pre-existing prejudice. In my view, the judge was wrong to say that the fact that the defendant could point to no prejudice that would result from the grant of an extension of time itself was “beside the point.”
THE COURT SHOULD NOT CONSIDER THE MERITS OF THE CASE AS A WHOLE
Further the court should not, on a prospective application for an extension of time, embark upon a consideration of the merits of the case as a whole.
First, it seems to me that it will rarely be appropriate to dismiss an application for an extension of time on the grounds that the claim is weak unless the court is able to conclude that an application to strike out the claim under rule 3.4(2)(a) or (b), or an application for summary judgment by the defendant under rule 24.2 would succeed. To refuse a prospective application for an extension of time on the grounds that the claim is weak, where neither the rule 3.4(2)(a) or (b) nor the rule 24.2 threshold is met would be a truly draconian step to take, and might well infringe a claimant’s rights under Article 6 of the European Convention on Human Rights. In my judgment, if a defendant wishes to seek to persuade a court not to grant an extension of time for service of particulars of claim on the grounds that the claim is weak, then it would be desirable for him or her to issue an application to strike out under rule 3.4(2)(a) or (b) or for summary judgment under rule 24.2 to be heard at the same time as the application for an extension of time.