The case of In Kaneria -v- Kaneria  EWHC 1165 (Ch) discussed in a previous post means that there is a highly significant difference between applications made before the date of compliance and those made afterwards. An application made after the date of compliance is subject to all the rigours of the Mitchell test. An application made before the date of compliance is still subject to consideration under the overriding objective but this is not anywhere near as rigorous. One matter that will soon become of great relevance is the precise date when the application is “made”.
THE IMPORTANCE OF THE DATE THE APPLICATION IS MADE
In Kaneria itself it was recognised that the difference in dates could make no logical sense. However there were sound policy reasons for
“31. Mr Jones submitted that once it was accepted that the Mitchell principles applied to an out-of-time application for an extension, it was illogical not to apply the same approach to an in-time application for an extension. I do not agree. Of course if time is due to expire on 14 February, there is little practical difference between an application made on 13 February (or 11 February as in this case) and one made on 15 February. Realistically it is unlikely that an application made on 11 February could be heard before 14 February, and even if the Court could in theory hear it immediately, it would no doubt usually already be too late for the applicant to comply with the original time limit: that is after all the reason why the application is made. One can see the strict logic of saying that in such a case the realistic position is that unless an extension is granted the applicant is inevitably going to fail to comply with the time limit, and should be treated in the same way as one who has already failed to do so.
- But this is not the approach that has been adopted as a matter of precedent, and I can see sound practical and policy reasons for not doing so.”
WHAT THE RULES SAY: THE RELEVANT DATE IS THE DATE OF RECEIPT
The relevant rule is CPR 23.5
“Time when an application is made
23.5 Where an application must be made within a specified time, it is so made if the application notice is received by the court within that time.”
So the crucial date is the date of receipt and not the date that the application is issued (see the notes at 23.5.1 of the 2014 white book).
There may be an issue, however, in proving the date of receipt, particularly where the application is sent by post.
WHAT CAN GO WRONG WITH AN APPLICATION?
Because the stakes are so high it is a virtual certainty that issues are going to arise both in relation to the date and the form of an application. If an application is in an incorrect form, or the applicant cannot establish that it was received in time, then the consequences could be enormous.
MATTERS TO WATCH OUT FOR
It is worthwhile spending some time reading Part 23. In particular
- 23,3 (1) – general rule that an applicant must file an application notice.
- 23.3 (2) requirement to file an application notice can be dispensed with.
- 23.4 – requirements for service of an application notice.
- 23.6 – what an application notice must include
- 23.7 service of the application notice.
Also take a close look at Practice Direction 23A this sets out further information an application notice must contain in addition to the matters in rule 23.6.
WHAT HAPPENS IF THE APPLICATION IS MADE WITHOUT PAYING THE APPROPRIATE FEE?
I cannot identify any case law on this application. We know that an action issued with an incorrect fee is not validly issued, see the discussion of Page -v- Hewetts. This may become a very live issue with court fees increasing on the 22nd April. See the amended fees SI here.