Seeking Time Extensions Before an 'Unless Order' Expires – The Correct Test: Everwarm Ltd v BN Rendering Ltd (Rev 2) [2019] EWHC 2078 (TCC)

Appellate authority dictates that an in-time application for an extension of time to comply with an ‘Order’ falls within the scope of CPR 3.1(2)(a) and CPR 1.1 (the overriding objective).

Lord Justice Dyson, in the case of Robert v Momentum Services Ltd [2003] EWCA Civ 299, reasoned that there was:

‘... no reason to import the rule 3.9(1) checklists 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 checklist 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 checklist 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)’.

Despite the fact that there was ‘little practical difference’ between an application made 1-day before a deadline expired and an application made 1-day after, Nugee J followed Robert in the case of Kaneria v Kaneria [2014] EWHC 1165 (Ch), wherein there had been an in-time application for an extension of time to serve a Defence:

‘I am bound ... to regard an in-time application for an extension of time as neither an application for relief from sanctions, nor as closely analogous to one, and ... to exercise the discretion under that rule by applying the overriding objective rather than the terms of CPR r 3.9’.

Hallam Estates Ltd v Teresa Baker [2014] EWCA Civ 661 was another case that both cited and upheld Dyson LJ’s deliberate decree, in Robert, to differentiate between in-time applications and out-of-time applications for time extensions.

However, does the ‘normal’ rule, first established in Robert, also apply to peremptory orders of the court, e.g. ‘Unless Orders’?

Sitting Deputy High Court Judge, Alexander Nissen QC, was tasked with answering this technical question in the recent judgment of Everwarm Ltd v BN Rendering Ltd (Rev 2) [2019] EWHC 2078 (TCC) – a debate on the ‘interface between CPR 3.1 and CPR 3.9’.

The basic facts of the case were as follows.

On 5 July 2019, an ‘Unless Order’ was issued and was due elapse by 11 July 2019.

However, less than an hour before the deadline was reached, the defendant applied for a further 7-day extension (until 18 July) with an oral hearing, pursuant to CPR 3.1(2).

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Hence, the inevitable issue arose at the oral hearing: should the defendant’s attempt to elongate the period for compliance be treated as an application made pursuant to CPR 3.9 or CPR 3.1?

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In other words, when approving an in-time application to extend time originally limited by an ‘Unless Order’, what was the yardstick – relief from sanctions (and the 3-stage test laid out in Denton v TH White Ltd [2014] EWCA Civ 906 or the overriding objective?

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Resisting the defendant’s in-time application, the claimant placed reliance on the ‘special character’ of ‘Unless Orders’ and submitted that CPR 3.9 applied at all times, regardless of when the extension was sought. There was no express mention of ‘Unless Orders’ in CPR 3.1(2)(a).

The claimant drew further support from the approach of Andrews J, in the case of Eaglesham v Ministry of Defence [2016] EWHC 3011, in respect of an in-time application for an extension of time to comply with an ‘Unless Order’ that compelled disclosure:

‘... technically this is not an application for relief against sanctions because the sanction has yet to bite ... However ... [it was] realistically conceded that the Court of Appeal's reasoning and approach in Denton ... should be applied ...’

Handing down judgment, Nissen QC favoured the defendant’s position, namely that the appellate authorities were binding and that Eaglesham proceeded ‘on the basis of an erroneous concession in the law’. He went on to outline the crucial principles that persuaded his finding:

‘(a) An application for an extension of time allowed to take a particular step in litigation is not an application for relief from sanctions provided that the applicant files his application notice before the expiry of the permitted period: Robert v Momentum and Hallam Estates.

(b) This is the case even if the court actually deals with the application after the expiry of the relevant period: Hallam Estates.

(c) Although there may be little practical difference between an application made just before the expiry of the permitted period and one made just after it had expired, the law has sound practical and policy reasons for distinguishing between the two: Kaneria and Hallam Estates.

(d) An in-time application for an extension of time is neither an application for relief from sanctions nor is it closely analogous to one: Kaneria and Hallam Estates.

(e) An "unless" order is an order of last resort. There is a powerful public interest in ensuring that parties recognise the importance of complying with "unless" orders: Sinclair v Dorsey.

(f) However, the power to extend time for compliance with a court order pursuant to Rule 3.1(2)(a) does not distinguish between routine court orders on the one hand and "unless" orders on the other.

(g) Accordingly, when determining an in-time application for an extension of time for compliance with both routine court orders and "unless" orders, the Court applies the overriding objective’.

Ultimately, the High Court judge opted to retrospectively accede to the defendant’s application for more time, with the sanction having taken effect automatically [see Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 463]. Thus, the extension was granted through the desired channel (CPR 3.1 and the overriding objective).

The material factors that inspired the judge’s exercise of the overriding objective included the lack of  prejudice to the claimant’s pre-trial preparations and the claimant’s continued pursuit of a sanction as a ‘weapon’, in spite of the fact that the defendant had already complied with the ‘Unless Order’ by the hearing date.

In any event, he considered that relief from sanctions would also have been granted, ‘had that been the relevant test’.

Full text judgment can be accessed here.