CLAIMANTS’ APPLICATION FOR AN EXTENSION OF TIME REFUSED: AN APPLICATION AT (SIX MINUTES) AFTER THE DEADLINE

The judgment of Mrs Justice O’Farrell in Jalla & Ors v Royal Dutch Shell Plc & Ors [2021] EWHC 2118 (TCC) shows the dangers of assuming that an extension of time will be given. The judge found that an agreement between the parties in relation to extending time did not prevent the claimants seeking a further extension from the court.  However she declined to exercise her discretion in the claimants’ favour.  We have an example of a very late application for an extension of time.  The fee being paid some six minutes after a 4.00 pm deadline.

“The court must have regard to the way in which the court resources are allocated as between different court users when considering whether or not to grant a party the indulgence of further time, it having failed to comply with the timetable set by the court.” 

THE CASE

The claimants were bringing actions relating to an oil spill off Nigeria in 2011.  There are some 27,830 individual claimants and 479 community claimants.  Directions had been given and further extension of time granted to the claimants and by agreement. The matter is listed for trial in February 2022. The claimants made an application for further extensions to update the schedules.

THE RELEVANT PRINCIPLES

The judge first considered the relevant principles in relation to an extension of time.

25.              The principles applicable to the application are not really in dispute.  It is common ground that the court has the power to extend time for any step to be taken whether the application is made before or after any time limit has expired: CPR 3.1(2)(a).  When making any decision in relation to an application for further time, the court must have regard to the overriding objective set out in CPR 1.1.  That requires the court to consider and ensure that a case is dealt with justly and at proportionate cost.

26.              That includes, so far as is practicable:

(a), ensuring that the parties are on an equal footing and can participate fully in the proceedings, and that parties and witnesses can give their best evidence;

(b), saving expense;

(c), dealing with the case in ways which are proportionate to the amount of money, importance of the case, complexity of the issues, and the financial position of each party;

(d), ensuring that it is dealt with expeditiously and fairly;

(e), allotting to it an appropriate share of the court’s resources while taking into account the need to allot resources to other cases; and

(f), enforcing compliance with rules, practice directions and orders.

27.              One issue that has arisen between the parties is whether or not the matter falls to be dealt with by way of an application for relief from sanctions, pursuant to CPR 3.9.  The point arises for two reasons: first of all, the application was submitted by the claimants at the very 11th hour ‑‑ I think Lord Goldsmith would say at the 13th hour ‑‑ on 2nd July, and payment was taken in respect of the application at six minutes past 4 p.m. as opposed to the 4 p.m. deadline.  But of more concern to the defendants is the fact that the application for a further extension of time was made against the defendants’ agreement to the earlier application on the basis that there would be no further extension of time sought or agreed to.

THE AGREEMENT TO EXTEND TIME

The judge considered the nature of the agreement to extend time.  The defendants made it clear that this would be the last extension agreed to and was given on the understanding there would be no more extensions.  The judge held that this did not prevent the claimants making an application to the court.

29. On 20th May 2021 Rosenblatt sent a letter to Debevoise & Plimpton, the solicitors acting for the defendants, in which it stated, at the end of the letter:

“We recognise the need for pragmatism and are grateful for the proposed three‑week extension to Friday, 25th June offered by your client.  Taking the above into account, we look forward to hearing from you as regards an extension to Friday, 2nd July 2021 with a commensurate four‑week extension afforded to your clients, the service of their responsive pleading and evidence enabling both the July 2021 CMC and the February 2022 preliminary issues trial to remain in place.”

30. On 21st May 2021, Debevoise & Plimpton wrote back to Rosenblatt, agreeing to the request for an extension of time to 2nd July, stating:

“But only in so far as you agree the following points: there will be no further extensions to the date of damage timetable, the four‑week extension will remove any flexibility from the date of damage timetable.  The defendants will not agree to the disruption of the four‑week date of damage trial set down for February 2022.  On that basis, the defendants will not agree to any further extension requests or applications and the claimants should not have liberty to apply.”

31. At the end of that letter, they stated:

“We enclose a form of order reflecting the matters set out above.  If you agree to this order, please confirm as much in open correspondence by 25th May.  Should you make an application to the court requesting an extension on different terms, it will be opposed by the defendants who will also seek that any variation be made on an unless basis.”

32. A further letter sent by Debevoise & Plimpton on 26th May 2021 reiterated that the defendants’ consent was given on the understanding that the claimants have acknowledged that:

“(1), this four‑week extension will remove any flexibility from the date of damage timetable; (2), the defendants will not agree to the disruption of the four‑week date of damage trial set down for February 2022; and (3), on that basis the defendants will not agree to any further extension requests or applications and the claimants do not have liberty to apply.”

33. The claimants agreed the form of order put forward by the defendants, but point out quite rightly that there is no unless order attached to it, and no firm agreement by the claimants in that order that no further application for an extension of time would be made.

34. Having considered the submissions made by the parties today and the terms of the correspondence between the solicitors in this regard, the court is satisfied that the defendants were very clear that they were agreeing to an extension of time to 2nd July on the basis that that was it, there would be no further extension of time; and that any further extension of time, if sought, would be opposed by the defendants.

35. However, I am also satisfied that the claimants did not sign up to a binding agreement that they would not apply to the court for a further extension of time, no doubt on the basis that unforeseen circumstances could arise that might make it necessary to make a further application to the court.

36. Stepping back, therefore, the court sees those exchanges as indicating that the defendants made it very clear as to the basis on which they were agreeing to the extension of time; also, the defendants made it very clear that there simply was no further flexibility in the timetable.  I take that into account as background, but I do not consider that the exchanges of correspondence shut the claimants out from making this further application.  Indeed, I understood Lord Goldsmith to accept that, in any event, the court would have a discretion to consider the application that is being made today. 

HOWEVER AN EXTENSION OF TIME WAS NOT GRANTED

Having found that the court did have a discretion to extend time the judge declined to exercise that discretion.

37.              I then turn on to consider the substance of the application against the factors that the court must bear in mind.  The first point is that these proceedings were started in 2017.  There have already been three timetables for the claimants to provide a pleading and evidence in support of their case on date of damage: initially by Stuart‑Smith J (as he then was) back in March 2020; secondly, by this court in the order of December 2020; and then more recently by way of the consent order of 2nd June 2021.

38.              Secondly, the court considers that this is a case where there is a need for early resolution of some of the key issues in the case.  The oil spill in question occurred in 2011.  We are now in 2021.  By the time of the date of damage trial, the incident giving rise to the claim will be more than ten years old.  Having regard to the need to deal with cases expeditiously, as well as fairly, this is a case that needs to move forward and on which there needs to be resolution.

39.              Thirdly, I take into account the fact that the claimants have failed to meet the timetable set down by both Stuart‑Smith J (as he then was) and by this court.  I accept that the claimants have significant challenges.  The COVID‑19 pandemic has caused difficulties.  The particular challenges caused by the location and circumstances of the claimants as individuals and the communities pose significant logistical and security issues. However, those factors have already been taken into account by the court when fixing and revising the timetable.

40.              The court also considers that the claimants must bear some responsibility for the difficulties that they now face.  It should have been possible for a strategy to be identified by the claimants that would enable a proportionate approach to be taken to the identification of test or representative or sample claimants and locations, so as to enable the task to be completed by the dates set by the court.

41.              As against those matters, the court acknowledges that the claimants did serve on 2nd July 2021 the date of damage pleading, their factual witness in support of that pleading, and extensive expert evidence dealing with both the oil spill and spread of oil contamination together with the Nigerian law issues.

42.              Fourthly, the court considers the prejudice to the defendants if the claimants are granted further time to perfect their case.  The defendants will suffer prejudice by way of disruption to their preparation for the February 2022  hearing.  Either they will have to grapple with additional material, whether it be by way of additional expert evidence or simply by way of additional dates inserted into the current schedules of individuals within a relatively short period of time, or they face losing the trial currently fixed for 2022.

43.              I accept Lord Goldsmith’s submission that the defendants are entitled to know with precision the case that they have to meet.  Regardless of their primary defence, they are entitled to have an opportunity to consider the detail of the claimants’ case and the evidence put forward in support, so that they can consider whether or not to challenge that evidence.  They are also entitled to a reasonable opportunity to prepare their own case and evidence for the February 2022 hearing.

44.              Fifthly, the court must have regard to the use of the court’s resources.  The February 2022 hearing has been fixed as a four‑week trial.  As a result of that, judicial resources are tied up for that four‑week hearing.  Since the December 2020 order, there have been many parties that have come before this court that have asked for an early hearing date, including a hearing date during the early part of 2022.  The court has not been able to give them their preferred dates because other trials have been fixed during that period; that includes this trial, which currently takes up a substantial period at the beginning of 2022.  The court must have regard to the way in which the court resources are allocated as between different court users when considering whether or not to grant a party the indulgence of further time, it having failed to comply with the timetable set by the court. 

45.              Drawing all of those threads together, the court considers that the claimants have had sufficient time to identify the witness evidence and produce the expert evidence on which they wish to rely in order to plead and present their case on date of damage.  I note that the claimants are not seeking permission to serve further factual witness statements, but the changes that are proposed to the existing schedules in order to insert dates against perhaps 900 entries would provide a formidable new case that the defendants would have to investigate and to which it would be required to respond.

46.              Taking all of those factors into account, the court refuses the application by the claimants for additional time to serve further particulars and/or evidence in support of their case.