DEFENDANT GRANTED AN EXTENSION OF TIME TO FILE A DEFENCE : “I AM IN NO DOUBT THAT I SHOULD GRANT THE RETROSPECTIVE APPLICATION OF OF ONE DAY…”

In Ahmad v Comptroller-General of Patents, Designs and Trade Marks [2025] EWHC 936 (Pat) Mr Justice Mellor granted the defendant an extension of one day to file a defence, this had the effect of making the defendant’s applications to strike out and/or for summary judgment being in time.

(Remember never assume that the court is a rubber stamp…)

“… I am in no doubt that I must grant the retrospective extension of one day so that the Defendant’s First Application is treated as properly filed in time.”

KEY PRACTICE POINTS

The most obvious point is to make sure that applications are actually signed. If a problem occurs then deal with this immediately (as happened here). It is also important that an application is made, and the situation explained (again as happened here), never assume that the court will simply provide a rubber stamp.  The defendant’s actions here were prudent and sensible even in circumstances where the court felt it was “plain and obvious” that relief from sanctions should be granted.

THE CASE

The claimant brought an action against the defendant on the grounds that he was not granted a patent. The claimant agreed an extension of time to file the defence. On the date that the defence was due the defendant made an application to strike out and/or for summary judgment. However the application was rejected because it was not signed. The application was submitted again the following day.

33. The due date for the filing of the Defendant’s defence fell on 25 December 2024 and Mr Ahmad agreed an extension until 8 January 2025.

34. On 8 January 2025, Mr Daley filed an Application Notice in the same form as that I am dealing with, but the filing of it was rejected because the Application Notice was not signed. This error was brought to Mr Daley’s attention on 9 January 2025, promptly rectified and the compliant signed Application Notice was filed and issued on 9 January 2025. This incident gives rise to the second Application Notice which I deal with at the end of this Judgment.

THE JUDGMENT GRANTING RELIEF FROM SANCTIONS

58. At [34] above, I outlined briefly the circumstances which led to the making of the Defendant’s Second Application, issued on 10 January 2025, which is for a retrospective extension of time for filing a Defence (put forward on various grounds) and, in the alternative, for relief from sanctions. The point here is that the First Application ought to have been served within the time for filing a defence. This Second Application was supported by Mr Daley’s second witness statement. Mr Ahmad responded in his second witness statement, in which he set out his contentions at some length, and I have considered all of them.

59. The extension required is one day.

60. The Defendant’s primary submission is that no sanction was imposed from which relief is necessary. The failure to provide a Defence on time gives the Claimant the opportunity to apply for judgment in default of Defence under CPR12.3(2)(a). In this case, the Claimant did not make any such application.

61. In those circumstances, as Dr Baran submitted, the Court has a general power to extend deadlines pursuant to CPR3.1(2)(a), but he accepts that the Denton principles governing relief from sanctions under CPR3.9 provide the appropriate yardstick to assist the analysis.

62. For the reasons which are set out in Dr Baran’s Skeleton Argument in [90], I agree that this is a situation where it is plain and obvious that the extension of one day should be granted. I do not find any of Mr Ahmad contentions showed otherwise. Briefly:

i) Denton Factor 1 – seriousness/significance: I agree the non-compliance in this case was neither serious nor significant. Although Mr Ahmad sought to suggest it was hypocritical for the Defendant to seek this extension of time in circumstances where the strike out application is based on Mr Ahmad’s failure to seek to reinstate his patent application in time, this is a bad point. No analogy can be drawn between an extension of one day and Mr Ahmad’s failure for years to seek to reinstate his application.

ii) Denton Factor 2 – why the breach occurred: I accept the breach was entirely inadvertent, and it was corrected within a matter of hours of it coming to light.

iii) Denton Factor 3 – all the circumstances: overall, Mr Ahmad cannot point to any prejudice as result of this one day delay in early January 2025. It caused him no additional cost, nor has it interfered in any way with the Court’s ability to do justice on these applications.

63. For all these reasons, I am in no doubt that I must grant the retrospective extension of one day so that the Defendant’s First Application is treated as properly filed in time.