“IN TIME” APPLICATION TO EXTEND TIME FOR PEREMPTORY ORDER REFUSED: CLAIM STRUCK OUT

I am grateful to Charles Bagot of Hardwicke Chambers for bringing my attention to the decision in Kranniqi -v- Watford Timber Company Ltd (District Judge Parfitt 13/04/2016). It is a working example of (i)the dangers of failing to comply with a peremptory order; (ii) the difficulties in obtaining an extension of time for compliance.

KEY POINTS

  • An application to extend time for service of an order made without a hearing is not subject to the seven day time limit.
  • On the facts of this case the judge refused an extension of time to comply with the provisions of a peremptory order (even though the documents that were the subject of the order had, in fact, been provided prior to to application for an extension).
  • The action had been struck out as a result of the claimant’s failure to comply. It was not an appropriate case to grant relief from sanctions.

THE CASE

The claimant was bringing an action for damages for personal injury. Liability was admitted. The defendant raised issues of exaggeration.  The defendant sought disclosure of the claimant’s bank statements.  A request was made under Part 18.  On the 9th February 2015 the court made an order that unless, by the 2nd March 2015, the claimant replied to the defendant’s questions, the claim would be struck out.

COMPLIANCE WITH THE ORDER

The claimant filed a reply  on the 2nd March 2015 that stated that bank statements had been requested and would be served as soon as they were provided.

A subsequent order was made on the 2nd July which required the outstanding statements to be provided by the 5th August.

The claimant “lost touch” with his solicitors and so his solicitors made an application to vary the time for compliance with the second order. The application was not served on the defendant’s solicitors who assumed, until they received a hearing date, that the action stood struck out.

The bank documents were provided on the 16th December 2015 and the claimant made an application for relief from sanctions.

THE JUDGE’S FINDINGS

The District Judge found:

  • The replies to the order of the 9th February complied with the terms of that order. The order did not specify that the claimant had to produce the documents.  “The draconian sanction of a strike out points to a construction of any unless order which errs on the side of compliance rather than setting traps for inadvertent non-compliance.”
  • The application to extend time for compliance the second order could be considered and was not out of time.  There is a difference between the requirement to seek to set aside an order within 7 days and an application to extend time for compliance

THE EXERCISE OF THE DISCRETION TO EXTEND TIME

39. It was common ground that an in-time application is not to be equated with an application for relief from sanctions even by analogy. The application must be dealt with under the court’s general discretion informed by the requirement under CPR 1.2 to seek to give effect to the overriding objective when exercising, here, the power to extend time.
40. In circumstances where the court is dealing with the application so long after it was made there is a temptation, which both parties fell into to some extent during submissions, to assume hypotheticals in their favour based on what would have happened had things been done sooner. I do not consider it appropriate to frame the question as being would the court have extended time until 16 December 2015 if it was considering whether to grant the extension in August 2015. The court should deal with the reality before it and take account of everything relevant that has happened.

However, even applying this broader criteria, the District Judge declined to extend the time.

48. The issue over these bank statements has involved three separate applications (I am
not counting the relief from sanctions application for this purpose) and has been
addressed by the court on two occasions other than the applications under
consideration in this judgment. This is disproportionate for such a straightforward
and familiar aspect of litigation.
49. The Claimant failed to provide copies when invited to and then failed to provide them
in full when the court first ordered replies and failed again to provide copies when the
court again required them notwithstanding the unless order.
50. All of those circumstances analysed by reference to the relevant requirements of the
overriding objective point to the Claimant not being allowed an extension of time to
16 December 2015 to provide the missing disclosure. There is no sufficient
explanation given as to why it took the Claimant so long to provide the missing
statements to justify an extension of time from the 5 August 2015 deadline until 16
December 2015. When that lack of explanation is balanced against the other factors
that inform the overriding objective, as set out above, the refusal of a 19 week
extension for something so apparently simple is inevitable.

THE RELIEF FROM SANCTIONS APPLICATION

Considering the Denton criteria the judge held:

  • The failure to provide the documents between March and December was a serious and significant breach.
  • There was no real, or adequate, explanation for the delay.
  • “I do not consider that the outcome of refusing relief being to deprive the Claimant of whatever damages he might have been entitled to makes the sanction disproportionate. The sanction is only the consequence of the Claimant not complying with an unless order which was not challenged as to its substance. The Defendant was right to draw attention to British Gas Trading v Oak Cash and Carry Ltd [2016] EWCA Civ 153 where a defendant was struck out from defending a £200,000 claim because of failing to file a pre-trial checklist in time. Strike out is a serious sanction but the court’s ability to grant relief from sanction in an appropriate case mitigates that harshness. If it is not appropriate to grant relief otherwise then it is unlikely that the mere fact of the sanction would itself justify the granting of relief. Ultimately it will depend on the facts and the facts of this case when taken as a whole do not entitle the Claimant to relief from sanction.”
  • The claimant’s failures had led to many months of delay, much additional costs and did not demonstrate due concern for following the court’s order.

Charles has written a summary of the case on the Hardwicke website.

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