Parties are advised to make applications in advance of the expiry of time limits in order to avoid a breach and have the courts look more favourably on their applications. It must be remembered however that an application made in time is not necessarily bound to succeed.
This was the case in Frontier Estates -v- Berwin Leighton Paisner (Ch D 30/10/2014).
The Claimant made an application for an extension of time to serve the Particulars of Claim. The application was made in time however at first instance the Master considered the application under CPR 3.9 rather than CPR 3.1(2)(a) and refused the application.
The Claimant appealed the decision on the basis that the Master had erred in considering the application under CPR 3.9 because it was an in time application and therefore not one for relief from sanctions.
The Court expressed concern that everything had been done last minute from the Claimant’s perspective: proceedings had been issued just before the expiry of the limitation period, there had been no pre-action protocol letter despite the fact that the Claimant had had the necessary information to produce one and there was no satisfactory explanation for any of the delays.
It was held that the Defendant would suffer the greater prejudice by allowing the extension. The Defendant was not granted a windfall by the proceedings being statute barred, the Limitation Act was designed to protect Defendants from stale claims.
The Master had erred in considering the Claimant’s application under CPR 3.9 rather than CPR 3.1(2)(a) however his conclusion, based upon the overriding objective, was sound.
Clearly it is still preferable for applications to be made in advance where they are necessary however delays with no adequate explanation will nevertheless be looked upon negatively.