Extensions of Time in the New (Post -Jackson) world

Robert Vernon provides commentary on how the High Court (in the guise of Edwards-Stuart J sitting in the Technology and Construction Court) has recently provided one of the first insights into the approach to be taken by the courts to applications for relief from sanctions in the post-Jackson era. The article can also be found on the PI Brief Update website at www.pibriefupdate.com.

Since 1 April 2013, any application for relief from sanctions (made after 1 April 2013) will now be considered by reference to the new CPR 3.9 which provides that:

“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a)   for litigation to be conducted efficiently and at proportionate cost; and

(b)   to enforce compliance with rules, practice directions and orders.”

In Venulum Property Investments Limited v Space Architecture Limited [2013] EWHC 1242 (TCC), the Claimant had issued proceedings against ten defendants for losses allegedly suffered in connection with a residential development.  The Claimant had known of its potential claim in early 2007 but had not instructed solicitors until September 2012.  A Claim Form was issued on 12 November 2012.  On 28 February 2013, the Claimant’s solicitors sent a letter of claim (purportedly complying with the Professional Negligence pre-action protocol) to each of the ten defendants. 

The Claim Form was served with effect from 12 March 2013 (i.e. the very last day for service).  The Particulars of Claim should have been served at the same time but were not.  As a result of a mistaken reading of the provisions of CPR 7, the Claimant’s solicitors believed that they had a further 14 days in which to serve the Particulars of Claim.

Two of the ten defendants opposed the Claimant’s subsequent application for an extension of time in which to serve the Particulars of Claim.  No doubt they did so because, by that time, any fresh action against those two defendants would have been statute barred and so if the Claimant’s application could be defeated, the claim against the two defendants would be brought to an end.

The point made on behalf of the defendants was that, as a result of the amendments to the CPR, the emphasis on applications such as that made by the Claimant has now shifted so that the court is now required to take a much stronger and less tolerant approach to failures to comply with matters such as time limits.

In considering the application, the court referred to the judgment of the Court of Appeal in Fred Perry v Brands Plaza Trading [2012] EWCA Civ 224 in which Lewison LJ cited (with approval) paragraph 6.5 of the Jackson report:

“... courts at all levels have become too tolerant of delays and non-compliance with orders.  In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system.  The balance therefore needs to be redressed.”

The Claimant’s application (which only sought an extension of time of a matter of days) was refused.  Of particular significance, in the court’s view, were the following factors:

a)      The Claimant had delayed for over five years before instructing solicitors and those solicitors had left it until the very last minute to issue and serve the proceedings;

b)      The Claimant’s claim against the two defendants was not strong and there was reason to believe that the case against the other eight defendants was as good if not better; and

c)      The Claimant was seeking to advance a claim for bad faith which had been pleaded in vague terms.

Edwards-Stuart J concluded his judgment by saying that in all the circumstances, “particularly in light of the stricter approach that must now be taken by the courts towards those who fail to comply with rules following the new changes to the CPR” the application was refused because “enough is now enough”.

One view of the judgment is that it may simply be a reflection of the court (and the particular Judge) taking a stern view of an apparently weak claim not being pursued timeously.  However, parties and their representatives cannot safely approach the judgment on that basis.  The message must be this: time limits and orders are there to be complied with.  Ignore them at your peril!