CIVIL PROCEDURE BACK TO BASICS 93: THE TIME FOR SERVING AN APPLICATION AFTER IT HAS BEEN MADE

The previous post about the judgment in AMRA Leasing Ltd v DAC Aviation (EA) Ltd & Ors [2022] EWHC 1718 (Comm) involved a case where the defendants had waited for two months to serve an application.   This was not a critical feature in that case because the pre-application delay was so serious and the application was refused in any event.  However the need to serve any application “as soon as practicable after it is filed” is often overlooked.

“(1) A copy of the application notice –

(a) must be served as soon as practicable after it is filed;”

CPR 23.7

CPR 23.7
(1) A copy of the application notice –
(a) must be served as soon as practicable after it is filed; and
(b) except where another time limit is specified in these Rules or a practice direction, must in any event be served at least 3 days before the court is to deal with the application.
(2) If a copy of the application notice is to be served by the court, the applicant must, when he files the application notice, file a copy of any written evidence in support.
(3) When a copy of an application notice is served it must be accompanied by –
(a) a copy of any written evidence in support; and
(b) a copy of any draft order which the applicant has attached to his application

 

“AS SOON AS PRACTICABLE AFTER IT IS FILED”

Most people are familiar with the three day requirement. However the requirement is clear in the rule.  A copy (not a sealed copy) of the application must (note the word “must”) be served as soon as practicable after it is filed.

The applicant need not, indeed should not, wait until the court sends back copies with a date. The obligation in the rules is clear the application, and evidence in support, should be served “as soon as practicable” after it is filed at court.   An applicant faced with difficult questions as to why an application is served late  may well say – well you had your 3 days – but the court is entitled to ask (indeed should ask) why wasn’t this served “as soon as practicable”.  If there is no good reason, and unnecessary costs are incurred as a result , then it may well be the applicant who is paying those costs.

An important point to note is that for an application for summary judgment under Part 24 the time period is 14 days. Further when the application is to be heard by telephone the period of notice is 5 days before the hearing (4.1A of PD32). However all of these are minimum requirements. The Practice Direction makes it clear that “the application notice must be served as soon as possible”.

 

DELAY IN SERVING IS DANGEROUS (FOR THE PARTY MAKING THE APPLICATION)

 

A decision to serve an application, or evidence in response to an application, late is one that can lead to difficulties. Take the case of Crown House Technologies Ltd v Cardiff Commissioning Ltd & Anor [2018] EWHC 54 (TCC). The defendant was applying for summary judgment. The claimant served evidence in response, but served it late.

 

  1. This application was made on 13 November 2017. The second witness statement of Mr Loble was provided at the same time. Mr Loble then sought to reach an agreement with CHT’s solicitors that would have seen the evidence in response being provided by 19 December 2017. That was a sensible proposal, but CHT’s solicitors refused to agree. Instead, they sought to take advantage of the Christmas/New Year vacation.

  2. Furthermore, it is quite clear from the evidence that they sought to ensure that ENP had the minimum amount of time to consider any evidence in response. It seems that CHT’s solicitors were guided by the provision in CPR 24.5 that their evidence in response had to be filed “at least seven days before the summary judgment hearing” (i.e. the last possible date). That would have been the close of business on Wednesday 10 January 2018. Then, having deliberately left it to the last minute, CHT’s solicitors were unable to serve the statement in time. The statement of Ms Saad was served after close of business on 11 January 2018 which means that it was deemed to be served on 12 January 2018, the date that, pursuant to CPR 24.5(b) ENP were supposed to put in their own evidence in response.

  3. CHT therefore have to make an application for relief from sanctions.

The claimant obtained relief from sanctions, but the delay had an impact on the outcome.

“That result is also justified when considered against the backdrop of CHT’s conduct of the case generally, including the delays in the provision of the relevant witness statement in response to this application. In my view, the time has come for the claim against ENP to be put out of its misery”