Mitchell  1 WLR 795 and Denton  1 WLR 3926 dealt with the situation of an application out of time, that is to say when the time had expired for performance of a step dictated by a rule or by practice direction or a court order had expired. But the further question arises, To what extent do the principles laid down there apply in the situation where one applies in time, that is to say before the expiry date? That is of great importance, because, if one is handling a case properly, it should become obvious, at least some days if not weeks in advance, that a particular time limit is not going to be able to be achieved. This may be for a variety of reasons, sometimes because of illness or – tell it not in Gath! – the delays of counsel. This matter was considered in depth fairly recently in Re Guidezone Ltd, Kaneria-v-Kaneria  1 WLR 3728, by Nugee J. In a full and careful judgment, the judge considered what was the position when an in-time application was made under CPR r.3.1(2)(a) for extension of time. He held that such an application was not an application for relief from sanctions, nor was it closely analogous to one. Therefore, Mitchell did not apply to it.
Before everyone heaves a great sigh of relief, we have to go rather more carefully into the point. Once he had come to the conclusion that an in-time application was not caught by Mitchell or r.3.9, Nugee J then went back to the fundamental rule. The original rule laid down that the overriding objective was “enabling the court to deal with cases justly”. The rule as amended last year now reads “enabling the court to deal with cases justly and at proportionate cost” and there has been added to r.1.1(2) a sub-paragraph (f), “enforcing compliance with rules, practice directions and orders”.
So if you want an extension of time, even when applying in time, it is not sufficient to show that it will be reasonable to grant an extension or even that to grant an extension would not involve any damage to the other party. You must still show that the fact that you are not complying with the time laid down either by a rule or an order or a practice direction is a feature which does not involve additional expense or interference with a court schedule or damage to the other party and does not involve a flagrant breach of any court order or rule. Insofar as the contrary might be able to be argued, you must be prepared to show that the entire justice of the situation is a matter to which the court can give priority over its insistence that the rules and orders be adhered to to the letter. The court will still want to know why there has been this delay and whether it has been all on one side and whether granting the extension of time would involve a significant interference with the preparation for trial of the issues. It is of course a substantial ground for success in such an application that to grant it would not involve any damage to the other party or parties, whereas to refuse it would give him or them an undeserved windfall.
One has of course now to take into account the amendments made to r.3.8 by adding para (4), that unless the court orders otherwise the parties can by prior written agreement extend the time for doing an act in question for a maximum of 28 days, provided always that any such extension does not put at risk any hearing date.
So, as Nugee J advises, a party who needs more time for a procedural step in existing proceedings should not just ignore the problem, but should ask the other side for consent and only if consent is not forthcoming should an application be made. Obviously, the other party should, if practicable, give a prompt consent or at least respond positively and cooperate by imposing reasonable requirements upon the party applying for a consent. If the party who has asked for consent does not give it but seeks to, as Nugee J put it, “take opportunistic advantage of the other party’s difficulties”, they can find themselves mulcted in costs.
I would only emphasise that, first, it is vital to keep a check on the time limits, so that there is sufficient time to take the necessary steps of asking for consent and then making an application in time and secondly, that any application which is made, for whatever reason, should set out the reasons carefully and explain why it is that time is running out without compliance with the rule or order. (If you are so close to the time limit that there is not time to prepare a full statement of the reasons and circumstances, I would advise getting in the application with a summary and adding a full statement as soon as practicable afterwards.) In Re Guidezone, Nugee J, despite the fact that there were faults on both side and that it was clear that the party resisting the application would suffer no disadvantage if the application were granted, nevertheless went with great care into the reasons given for failure to comply with the time limits and only her weighing up the various aspects of the case, did he give his consent.
May I also draw to your attention a further case in this series which has just been decided and exemplifies the principles stated above, Frontier Estates-v-Berwin Leighton Paisner decided on 30th October 2014. It is the subject of a blog by Frances Lawley on this website.
JOHN M. COLLINS