PROSPECTIVE APPLICATIONS FOR EXTENSIONS OF TIME (CONSTITUTIONAL LAWYERS DO NOT GET EXCITED)
Today seems a good day to consider prospective applications for extensions of time. These are going to figure in every litigators career at some point. A knowledge of the relevant law is essential. A prospective application of time is dealt with very differently to a retrospective application. Here we look at the key rule, key points and key cases.
CPR 3.1(2)(a) is the relevant rule.
“(2) Except where these Rules provide otherwise, the court may –
(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);”
In Robert –v- Momentum Services Limited  EWCA Civ 299 the Court of Appeal held that where an application for an extension of time is made before the expiry of the stipulated period this was not a case as one of relief from sanctions. The court’s discretion should be exercised by having regard to the overriding objective. The court considers only the prejudice caused by the failure to take the relevant step and does not, normally, consider pre-existing delay or prejudice – except in exceptional circumstances.
APPLICATIONS FOR EXTENSIONS OF TIME MADE IN ADVANCE ARE GOVERNED BY CPR 3.1(2)(a) and not CPR 3.9.
Robert Dyson L.J. stated that there was a clear difference between a prospective and retrospective application for an extension of time to comply with a court order.
30. 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.”
3.9 DOES NOT APPLY WHEN AN APPLICATION IS MADE IN ADVANCE AND THE KEY DATE IS WHEN THE APPLICATION IS MADE NOT WHEN IT IS HEARD
Dyson L.J. went on to state:
“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).”
THE MERITS OF THE CLAIM SHOULD RARELY BE CONSIDERED ON AN APPLICATION TO EXTEND TIME
Dyson L.J. was critical of the judge’s consideration of the case on the merits.
“41. The remaining point about which I need to make comment is in relation to the merits of the claim itself. The judge was considerably influenced in reaching his decision by his view that the claimant’s case “does not inspire a great deal of confidence in its prospects of success.”
42. I will make two points about this. 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.
43. This brings me to the second point. If a defendant does wish to pray in aid the overall merits of a claim as a reason for refusing an extension of time, notice should be given to the claimant. This will enable the claimant to submit evidence directed to the point. In the present case, no notice was given beyond a passing reference in the grounds of appeal to the defendant being faced with a “stale claim which has prima facie significant weaknesses.” In my view, this was not sufficient to put the claimant on notice that the weakness of her claim would be relied on as an independent reason why the decision of the district judge was wrong. In the result, there was no evidence on behalf of the claimant dealing with the merits of the claim.”
PROSPECTIVE APPLICATIONS: KANERIA
In Kaneria -v- Kaneria  EWHC 1165 (Ch) it was made clear that Mitchell (now Denton) principles did not apply in cases where an application was made prior to the date of breach. The principles in Robert -v- Momentum Services  EWCA Civ 229
THE FACTS IN KANERIA: APPLICATION FOR EXTENSION OF TIME TO FILE DEFENCES MADE PRIOR TO DATE DEFENCES WERE DUE
The action was an unfair prejudice petition. At an earlier interlocutory hearing an order was made that the Respondents file and serve a defence by the 14th February 2014. The Respondents made a request for an extension of time to file their defences on certain preliminary issues. No reply was received initially and then the request was refused. On the 11th February 2014 the Respondents made an application for an extension of time.
THE APPLICANT’S OBJECTIONS AND APPLICATION TO DEBAR THE DEFENDANTS FROM DEFENDING
By way of response the Applicant made an application seeking an order debarring the Respondents from defending the preliminary issues.
THE DEFENCES SERVED LATE
The Defences were served on the 14th (and in one case the 15th) March 2014.
DID THE MITCHELL PRINCIPLES APPLY?
The first decision the judge had to make was whether the Mitchell principles applied to the application. The judge held that:
1. If an application has been made “out of time” (that is after the date for compliance) then he had little doubt that the Mitchell principles applied.
2. This was was “in time” application for an extension and different principles applied.
WHY DIFFERENT PRINCIPLES APPLY WHEN AN “IN TIME” APPLICATION IS MADE
This case by contrast is one of an in-time application for an extension. Mr Jones submitted that once it was accepted that the Mitchell principles applied to an out-of-time application for an extension, it was illogical not to apply the same approach to an in-time application for an extension. I do not agree. Of course if time is due to expire on 14 February, there is little practical difference between an application made on 13 February (or 11 February as in this case) and one made on 15 February. Realistically it is unlikely that an application made on 11 February could be heard before 14 February, and even if the Court could in theory hear it immediately, it would no doubt usually already be too late for the applicant to comply with the original time limit: that is after all the reason why the application is made. One can see the strict logic of saying that in such a case the realistic position is that unless an extension is granted the applicant is inevitably going to fail to comply with the time limit, and should be treated in the same way as one who has already failed to do so.
But this is not the approach that has been adopted as a matter of precedent, and I can see sound practical and policy reasons for not doing so. So far as precedent is concerned, in Robert v Momentum Services Ltd EWCA Civ 299 (“Robert”), the Court of Appeal expressly held that an in-time application for an extension of time (in that case for service of the particulars of claim) was not, and should not be treated as, an application for relief from sanctions.
Atriam Training: High Court finds that Robert still applies
In Atriam Training Services  EWHC 1562 (Ch) Mr Justice Henderson considered an application for an extension of time by liquidators to give disclosure in a complex insolvency case. Disclosure was due to take place on the 2nd April 2013, however on the 28th March 2013 the solicitors for the liquidators made an application for an extension of time until the 28th June 2013. A cross-application was made for an order that the action be struck out, or that any extension should be made on an “unless” basis
The judge held that the fact that this was a prospective application meant it would be wrong to treat it as an application for relief from sanctions. The court would apply the principle in Robert
“… 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)”.
The relevance of the change in the overriding objective
The overriding objective now includes the enforcement of compliance with orders. To this end the court had to balance two issues:
“52. The matters set out in rule 1.1(2) now include, of course, the enforcement of compliance with orders. To that extent, it is no doubt the case that the court will scrutinise an application for an extension more rigorously than it might have done before 1 April, and that it must firmly discourage any easy assumption that an extension of time will be granted if it would not involve any obvious prejudice to the other side.”
The balancing act: parties should not behave unreasonably
However the court had to provide a balance:
53. On the other hand, I think it is important not to go to the other extreme, and not to encourage unreasonable opposition to extensions which are applied for in time and which involve no significant fresh prejudice to the other parties. In cases of that nature, considerations of cost and proportionality are highly relevant, and the wider interests of justice are likely to be better served by a sensible agreement, or a short unopposed hearing, than by the adoption of entrenched positions and the expenditure of much money and court time in preparing for and dealing with an application that could have been avoided.
54. I would also observe that, although all court orders mean what they say, and must be complied with even if made by consent, there are some orders relating to the completion of specified stages in preparation for trial (such as disclosure, the exchange of witness statements or a timetable for expert evidence) where there may still be so many imponderables when the order is made that the date for compliance cannot sensibly be regarded as written in stone. Everything will always depend on the circumstances of the particular case, and the stage in the proceedings when the order is made, but in many such cases it should be understood that there may be a need for reasonable extensions of time or other adjustments as the matter develops. It would, I think, be unfortunate if the new and salutary emphasis on compliance with orders were to lead to a situation where, in cases of the general type I have described, a reasonable request for an extension were to be rejected in the hope that the court might be persuaded to refuse any extension at all.”
The judge made an order extending time but made an “unless” order in relation to disclosure on the extended timetable.
THE PRACTICAL SIGNIFICANCE OF THIS
1. The first principle has to be to comply with the orders and rules to the letter (and date!).
2. If a party finds that there is a possibility that they are unable to comply with an order then there is no doubt that the only prudent course of action is to make an application to extend prospectively.
3 A prospective application is not bound to succeed and may be considered with some rigour. The party making the application will have to justify it. The absence of prejudice is not decisive.