Latest news
News and Events

An application for extension of time for service or an application for relief from sanctions?

View profile for Nicholas Lee
  • Posted
  • Author

The matter of Hallam Estates (1) & Michael Stainer (2) v Teresa Baker [2014] EWCA Civ 661 was an appeal against the decision of the High Court reversing the decision of the costs judge whereby he refused to set aside his earlier order for an extension of time for points of dispute. The appeal was heard by Lord Justice Jackson alongside Lewison LJ, and Christopher Clarke LJ.

This was a defamation claim where the claimants were the paying party (hereinafter, the claimant). The Notice of Commencement was served some nine months late and points of dispute were due by 14 May 2013. The claimant requested an extension for service of the points of dispute and provided sensible reasons for the request. This request was not agreed.

Accordingly, on 14 May 2013, the claimant filed an application for an extension of time. This was formally issued on 15 May 2013 when it was stamped by the Court. 15 May 2013 was also the date of the receiving party’s letter enclosing the request for a default costs certificate; this was in fact ineffective as the accompanying cheques were not signed.

Master Gordon-Saker granted the extension ex-parte. The defendant applied for him to set this order aside and issue a default costs certificate. Master Gordon-Saker dismissed the application on paper on the basis that it was ‘was for an extension of time, not for relief from sanctions; there being no sanction from which to seek relief. An application for extension of time may be made retrospectively’.

The claimant then served their points of dispute.

The defendant appealed and this was upheld. The claimant’s points of dispute were ordered to be of no effect. The SCCO were also ordered to issue a default costs certificate. The judge explained his judgment by saying, among other things, that the claimant’s application for extension of time was issued out if time and that therefore they were seeking relief from sanctions.

The claimant appealed to the high court. Jackson LJ Lewison LJ, and Christopher Clarke LJ heard the appeal.

Jackson LJ found that the fact that the application was stamped on 15 May 2014 did not mean that it was out of time as it had been filed on the correct date. Accordingly Jackson LJ found that the judge had in fact been dealing with an in-time application for an extension of time and that this is ‘not an application for relief from sanctions, provided that the applicant files his application notice before expiry of the permitted time period’. Accordingly the principles of relief from sanctions did not apply.

Jackson LJ went on to say that his recommendations during the recent civil justice reforms intended that parties could not request reasonable extensions of time which do not otherwise affect the proceedings. Accordingly he found that the costs judge’s decision was a proper exercise of his case management powers and that the appeal judge erred in reversing it.

Although the finding of the first issue rendered the second irrelevant, Jackson LJ still provided his comments. He noted that the sanction for late service of points of dispute as set out at rule 47.9(5) is that the paying party ‘may not be heard further in the detailed assessment proceedings unless the court gives permission’. He went on to say that for present purposes, rule 47.9(5) prevents the issue of a default costs certificate once points of dispute have been served. Accordingly the judge did not have power to direct that the certificate be issued.

Jackson LJ found that the costs judge was making a case management decision about extension of time and the judge should not have interfered with his discretion. Lewison LJ and Christopher Clarke LJ both agreed.

During his consideration Jackson LJ commented on his recommendations and his intentions as regards relief from sanctions and compliance generally. Notably, at paragraph 30, he stated that:

"It was no part of his recommendation that parties should refrain from reasonable extensions of time, which neither imperil hearing dates nor otherwise disrupt the proceedings…nor was it any part of my recommendations that the court should refuse to grant reasonable extensions of time in those circumstances."

It is clear from this that Jackson LJ himself is of the opinion that that it is not reasonable for parties not to be able to agree sensible extensions of time between themselves. In fact early in his comments, he heralded the amendments to rule 3.8 which will allow parties to agree extensions of time of up to 28 days as long as the hearing date is not affected.

For advice or more information, contact Lucy Baldwin.  To read the full judgment, click here.