In Joan Angela Kember v (As Personal Representative of the Estate of Leonard John Kember, Deceased And On Her Own Behalf And On Behalf of His Dependants) [2019] EWHC 2297 (QB) Mrs Justice Lambert upheld a refusal to grant a defendant an extension of time to file a defence.


“speaking with court staff is no substitute for reading the rules.”


The claimant brought an action against two hospital trusts for negligence which she said led to the death of her husband.  Proceedings were served on the 28th September. There were a series of agreements for an extension of time to file the defence.   The final extension was to the 15th March 2019.  On the 15th March the Defendants’ solicitor tried to agree a further extension, but the claimant’s solicitor was out of the office. An application for an extension of time was made by fax at 17.43 on the 15th March. The court later informed the defendant that the application had not been received and a further application was made on the 12th April 2019, even at that stage the application recorded that the defence was still not available.


The Master refused the defendants’ application.

The applications came before Master Gidden on 26 April 2019. In his pithy ex tempore ruling he found the relevant default to be the failure to serve the Defence, that service of the Defence was a “a crucial stage in the proceedings” and the delay in service to be serious and significant. He observed that the passage of time from October 2018 (when the Particulars of Claim had been served) and “the ripple of events” through to March and April 2019 could not be characterised as anything other than a serious and significant breach. He found that there was no good reason for the breach and that the fact that there were two hospital Trusts involved was not a good reason for the delay in serving the Defence. He considered all of the circumstances, identifying the prejudice to the Defendants in not being able to defend the claim. He found that the application for relief from sanction was not made promptly, although there had been a prompt application for an extension of time for service of the Defence on the 15 March. However, his view was that this was the wrong application, and the right application was that of relief from sanction which had not been made until the 12 April. He commented generally that it was “extraordinary that Defendants defending a claim of this nature can be so relaxed about complying with deadlines, particularly successive deadlines as occurred here in the belief that the court will think it just to indulge further delay”. He refused the applications commenting that otherwise “he would be sending out quite the wrong message”.


The defendants’ appeal was unsuccessful.  The judge held that the Master may have erred in their approach to the application, however the error was not material.
    1. In the event, the legal framework was not significantly in dispute. I agree with Mr Reynolds that the appropriate focus for the hearing before the Master should have been the application for an extension of time for service of the Defence and that there was no need for an application for relief from sanction given that neither CPR 15.4 nor any of the court’s orders in this litigation prescribed a sanction in the event of default. Although Mr Hand did not concede the point, he did not argue seriously against it. If no sanction is prescribed then the proper application is, in the context of this case, one for an extension of time adopting the three stage Denton test. Given the proper concessions that the breach was significant and serious (stage one) and that there was no good reason for the breach (stage two), the only real question for me in this appeal therefore is whether, when considering all of the circumstances, including the effect of the breach on the litigation and the need to uphold the rules, the Master misdirected himself by focussing upon the application for relief from sanction and if so whether it was a material misdirection such that the ruling cannot stand.
    2. I accept Mr Reynolds submission that the Master was in error in approaching his stage three assessment of all of the circumstances against a finding that there had been a delay in making the application for relief from sanction and that he should have approached his analysis on the basis of his finding that the application for an extension of time for service of the Defence had been made promptly. I note however that given that the Defendants had made the application for relief from sanction and that Counsel who appeared before the Master had accepted that that application should have been made on 15 March, the Master cannot be criticised for going wrong, as I find he did. However, the timing of the application was only one of the considerations which influenced the Master’s ruling. The Master also took into account the effect of the delay on the litigation as a whole and by inference the prejudice to the Claimant in an already stale claim. He took into account the history of delay in serving the Defence with multiple extensions being obtained, culminating in the application for a further six-week extension on 15 March and the final service of the Defence only shortly before the hearing. Most significantly however he was scathing in his criticism of the conduct of the litigation by the Defendants. He understood (correctly) that part of the rationale for the Denton approach was the need for all parties in litigation to adhere to the rules and that if the application were to be allowed it would send out to the profession “quite the wrong message.” It was the Defendants’ wrong assumption that a yet further extension would be “indulged” which was pivotal to the Master’s decision. Given these critical comments, even if the Master had concentrated upon the application for an extension of time for service of the Defence as he ought to have done, I have no doubt that he would have refused the application. Nor am I persuaded that the discretion was distorted in any way by the Master having overstated the seriousness of the breach as Mr Reynolds submits. At stage three, the Master was fully entitled to consider the breach in context: whether this was done at stage one or stage three makes no difference.
    3. In summary therefore, although I find that the Master misdirected himself on a point of law, ultimately his misdirection was not material. On this basis, the decision was not wrong and I dismiss the appeal.
    4. If I am wrong in my conclusion and the misdirection which Mr Reynolds has identified was such as to vitiate the Master’s decision, then both parties are in agreement that I should set the decision aside and, rather than remitting it back, go on to exercise my discretion afresh. For the reasons which I set out below, I would, in these circumstances refuse the appeal.
    5. The Court is required at the third stage of Denton to take into account that litigation is to be conducted efficiently and at proportionate cost and the need for the parties to litigation to adhere to the rules and to court orders – see CPR 3.9(1)(a) and (b).
    6. It was common ground before me that consideration of CPR 3.9(1)(a) requires the Court to examine the effect of the delay on the litigation. Here the delay in service of the Defence stalled the case management hearing in a claim which goes back to 2014. Although, viewed in isolation, the delay in setting matters in train for a case management conference and the directions timetable would not lead me to refuse the application, this factor must be considered in conjunction with the need to enforce compliance with the rules under CPR3.9(1)(b) and other matters.
    7. There had been three extensions for service of the Defence before the further application made in January 2019. There was no good reason for the delay. I do not accept, as asserted in the witness statement of the Defendants’ solicitor, that this is a particularly complicated clinical negligence action. The claim boils down to no more than two or three allegations of negligence, each of which were set out in the pre-action letter of claim; the Defence as finally drafted adds little to the letter of response which had been served several months earlier. Although I accept that the fact that there are two defendants makes handling the litigation more cumbersome, it is by no means unusual for more than one Trust to be involved in litigation of this nature. It requires those conducting the litigation to act efficiently, but no more.
    8. In the absence of a good reason for the delay, I agree with the Master’s assessment that the Defendants’ approach to the litigation generally and to the rules and court orders was very relaxed. This attitude is evident from the witness statement served in support of the two applications of 12 April 2019 in which the author stated that, given that the Claimant had required 10 months to serve the Particulars of Claim following the letter of response, so the Defendants should be afforded the same period of time to prepare their pleadings in response. The statement does not take into account that delay before issue of proceedings is different from delay after issue, when the course and timetable of the litigation are prescribed by the rules. This relaxed attitude is also revealed by the fact that the draft Defence was only provided to the Defendants two days before the date for service on 15 March, a fact which emerged during the hearing before the Master. It could not have come as a surprise to the Defendants’ solicitor that if issues were raised by one of the Defendant Trusts then it would prove impossible to serve the Defence by 4pm on 15 March. Even after the faxed application to the Court on 15 March, there does not appear to have been any urgency in the Defendants conduct of the litigation. The witness statement records that, as of 12 April 2019, the Defence was still not ready to be served and further comments from the Trust had yet to be considered by those instructed by the Defendant, and Counsel, and NHSR before the document was signed off by the Defendant. The statement records no acknowledgement that the rules are there for a purpose to ensure the efficient, fair and proportionate conduct of litigation and that, absent good reason, they must be adhered to.
    9. Unlike the Master, I do not find that the application for an extension of time for service of the Defence was made promptly. Although an application was faxed to the Court at 17.34 on 15 March, the application was not accepted. I accept, as did Master Gidden, that the application had been preceded by a telephone call to the court when someone had apparently informed the Defendants’ solicitor that issuing by fax was acceptable. However, speaking with court staff is no substitute for reading the rules. Filing an application which attracts a fee by fax is permissible in only exceptional circumstances of unavoidable emergency. The situation facing the Defendants’ solicitor was not one of unavoidable emergency. Issuing by fax after close of business would not be effective until the next working day and, so, nothing was in fact gained by attempting to issue by fax over and above issuing in the usual way on the next working day. Nor was the situation unavoidable given that the situation arose because of the Defendants’ late sending of the draft Defence to the Trusts.
    10. Standing back, I ask myself whether the sanction is proportionate to the breach. I accept that the effect of my decision is that the Defendants are now only able to defend the claim on quantum and not on the merits. Nonetheless I, like the Master, consider that the sanction is proportionate to the breach. Such disregard of the rules as demonstrated in this litigation cannot be justified or excused.
  1. The appeal is dismissed.