PROVING THINGS 234: PROVIDE AN EXPLANATION FOR DELAY BY EVIDENCE – NOT BY SUBMISSIONS

The judgment of Mr Justice Henshaw in  Hays & Ors v Bloomfield Investments LLC [2022] EWHC 1648 (Comm) was on a very specific area of procedure.  However there is one matter of more general interest. The need to have evidence to hand to explain delay when there has been a failure to comply with a time period.

“In seeking relief from the Court, it is normally incumbent upon the applicant to adduce evidence which explains his conduct, unless circumstances make it impossible. In the absence of such explanation, the Court will give little weight to counsel’s arguments that the evidence discloses potential reasons for delay and that the applicant “would have assumed” this or “would have thought” that. It will not normally be legitimate, for example, for counsel to argue that an applicant was unaware of the time limit if he has not said so, expressly or by necessary implication, in his evidence.”

THE CASE

The applicants were applying for an extension of time of 35 days to challenge two arbitration awards in favour of the defendant.  The judge reviewed the principles relating to extension of time in this context.

 

THE JUDGMENT ON THE NEED FOR EVIDENCE TO EXPLAIN DELAY

c) Reasonableness of the applicant’s conduct

    1. As explained in Terna:

In seeking relief from the Court, it is normally incumbent upon the applicant to adduce evidence which explains his conduct, unless circumstances make it impossible. In the absence of such explanation, the Court will give little weight to counsel’s arguments that the evidence discloses potential reasons for delay and that the applicant “would have assumed” this or “would have thought” that. It will not normally be legitimate, for example, for counsel to argue that an applicant was unaware of the time limit if he has not said so, expressly or by necessary implication, in his evidence. Moreover where the evidence is consistent with laxity, incompetence or honest mistake on the one hand, and a deliberate informed choice on the other, an applicant’s failure to adduce evidence that the true explanation is the former can legitimately give rise to the inference that it is the latter.” (§ 29, per Popplewell J)

    1. These observations indicate the importance of adducing evidence rather than relying only on submissions. They also indicate that, as one would expect, there is a spectrum of reasons for delay. Whilst a delay occasioned by lack of awareness of the time limit, or by “laxity, incompetence or honest mistake” can hardly be described as ‘good’ reasons for delay, they will weigh less against an applicant than “a deliberate informed choice”.
    1. Terna addressed intentional non-compliance further in the next paragraph of the judgment:

“… factor (ii) is couched in terms of whether the party who has allowed the time to expire has acted reasonably. This encompasses the question whether the party has acted intentionally in making an informed choice to delay making the application. In Rule 3.9(1) of the Civil Procedure Rules, which sets out factors generally applicable to extensions of time resulting in a sanction, the question whether the failure to comply is intentional is identified as a separate factor from the question of whether there is a good explanation for the failure. This is because in cases of intentional non compliance with time limits, a public interest is engaged which is distinct from the private rights of the parties. There is a public interest in litigants before the English Court treating the Court’s procedures as rules to be complied with, rather than deliberately ignored for perceived personal advantage.” (Terna § 30)

  1. The applicants in Terna had not stated in evidence that they were unaware that a challenge should properly be brought before the English court, nor given any explanation as to why proceedings were instead started in Sharjah, nor explained why they then sought to pursue both sets of proceedings in parallel. The judge inferred that they were given advice within the 28-day period that they should challenge the award in London, and made and maintained a deliberate choice to apply in Sharjah due to some perceived advantage. It was thus a case of deliberate and tactical delay, for which the culpability was very high (§§ 70-74).