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Extension of Time Appeal Procedure -“Calling Time”

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Court of Appeal guidance on when it is reasonable to oppose time extensions and impose cost sanctions in litigation.

The recent case of R (Idira) v The Secretary of State for the Home Department [2015] EWCA Civ 1187 (20 November 2015) is an illustration of the vexed  question of when extensions of time should be granted in litigation and which party should pay the costs of a contested application for an extension. This is of practical importance to litigants who can face sanctions such as adverse costs orders or even strike out for failing to comply with Court timetables, or on the other hand can face prejudice if there is unjustified laxity in granting extensions.

The Master’s Order in R (Idira)

The claim was dismissed in December 2014. By consent, the time for the appellant filing and serving documents in relation to an appeal against this decision was extended on several occasions.

On 23 July 2015, 19 weeks after the filing of the Appellant’s Skeleton Argument and 14 weeks before the scheduled hearing date, the Respondent filed her Respondents notice and applied for an extension of time.  The boot was on the other foot and the Appellant this time opposed the Respondent’s application for an extension of time. Master Meacher had to decide whether an extension should be granted and who should pay the costs of the application.

He granted the Respondent a retrospective time extension for filing a notice, but also required the Respondent to pay the Appellant’s costs of the application on an indemnity basis.  Master Meacher’s reasoning was that although the delay in filing the Respondent’s notice was substantial it was not likely to have any impact on the course of the proceedings or cause undue prejudice to the Appellant.  It was a clear breach of the time limit set by the rules, but the Court’s function was not to impose sanctions merely for punitive reasons.  The hearing date of the Appeal would not be jeopardised by the extension of time.  It was a significant appeal and it was in the public interest for the Court to consider the points raised in the Respondent’s notice.

The Court of Appeal

On the appeal, the Court of Appeal upheld Master Meacher’s decision.  It confirmed the question of the extension fell to be determined in accordance with the principles stated in Denton v White and other appeals [2014] EWCA Civ 906 which has been the topic of previous blogs.

http://www.clarionsolicitors.com/blog/the-effect-of-mitchell-on-litigation-lawyers

Denton followed cases where the Courts sometimes struggled (and in the view of many failed) to achieve a sensible balance between ensuring that litigation was conducted efficiently and causing injustice by an unduly inflexible approach to compliance with rules and deadlines. 

Denton introduced a new three stage test for the Court to apply in all applications for relief from sanction going forward.

  1. Identify the seriousness of the breach.  Was it “serious or significant”?
  2. If it was, why did the default occur?
  3. The Court should consider all the circumstances of the case to deal with the application “justly” including (a) the need for litigation to be conducted efficiently and at proportionate cost (b) the need to enforce compliance with rules, directions and Court Orders.

In the Court of Appeal’s view, the Master’s decision struck the right balance on the facts of the case.

Conclusions

The points which it is possible to draw from Denton and R (Idira) include:

  1. The reasons given by the Respondent for the delay, mainly pressure of work and the need to consider an important appeal carefully were “inadequate”. Commercial parties, who are often busy running their businesses, should be aware that the Courts can be demanding in their expectations of what litigants should do and parties should try to agree a realistic timetable from the outset.
  2. Where a party requires an extension of time, it should explain to the other party why this is necessary and seek to agree it and if necessary apply for an extension before the deadline expires.
  3. A party refusing an extension should give reasons, in order to make it clear it is not merely seeking tactical advantage, and not seek to impose unreasonable conditions. 
  4. A careful assessment of whether the costs risk is justified will be needed when opposing extensions as the outcome of such applications can be difficult to predict.
  5. If the effect of a refusal will be to prevent a fair trial or any trial at all, an extension is more likely to be granted. In R (Idira) the public importance of the case was also a factor.
  6. In practice, a party will normally be able be able to obtain at least one extension before then becoming subject to an “unless” order that its case will be struck out if it does not comply.
  7. If Court hearings are some time away and / or if the party itself has had the benefit of extensions, it may be more difficult to resist agreeing extensions.
  8. Modern litigation requires a team approach. Good communication is important between solicitors, their clients and third parties such as experts to ensure compliance with deadlines.
  9. Work done where possible prior to the issue of proceedings may alleviate pressure on a party in later complying with Court directions.

If you have any questions please contact Senior Associate John Mackle on 0113 336 3336.

Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.