Robert v Momentum Services Ltd

A prospective application under rule 3.1(2)(a) of the Civil Procedure Rules 1998 is governed by the overriding objective. It is neither an application for relief from sanctions nor closely analogous to one, so the rule 3.9 checklist need not be applied.

The court should generally focus on prejudice caused by the failure to comply in time, rather than pre-existing prejudice. The apparent weakness of a claim will rarely justify refusing an extension unless the strike-out or summary judgment threshold is met. The claimant should receive notice if the merits will be relied upon.

The claimant brought a personal injury action arising from an accident at work. She served her claim form in time and, before the deadline for serving particulars of claim, applied under rule 3.1(2)(a) of the Civil Procedure Rules 1998 for an extension.

A district judge granted the extension. His Honour Judge Collins CBE allowed the defendant's appeal, exercised the discretion afresh by reference to rule 3.9, and dismissed the action. The claimant appealed.

The central questions were whether the district judge's reasons or failure to apply rule 3.9 justified a rehearing, and how a prospective application to extend time should be determined.

1. Appeal allowed unanimously. Lord Justice Dyson delivered the leading judgment. Lady Justice Hale and the Vice-Chancellor agreed. The order of His Honour Judge Collins was discharged and the district judge's order extending time was restored.

2. An appeal under rule 52.11(1) is ordinarily a review. A rehearing may be appropriate where reasons are so inadequate that the losing party cannot know why the decision was made, particularly where complexity or a concealed error is involved. It is enough, however, that the appellate court can determine why the district judge decided as he or she did. Prospective extension applications are ordinarily simple matters requiring swift decisions and brief, clear reasons. The district judge had plainly balanced the prejudice to each party, so his reasons did not justify a rehearing.

3. Rule 3.1(2)(a) deliberately contains no checklist. Where an extension is requested before the relevant time expires, the application is neither one for relief from sanctions nor closely analogous to one. The rule 3.9(1) checklist should therefore not be imported by implication. The discretion is exercised by applying the overriding objective in rule 1.1(2). The reasoning in Totty v Snowden [2001] EWCA Civ 1416 was applied, while Sayers v Clarke Walker (a firm) [2002] 1 WLR 3095 was distinguished because it concerned an application after the appeal period had expired.

4. The usual focus when assessing prejudice is the prejudice caused or likely to be caused by the failure to act in time, rather than prejudice which already existed. Earlier prejudice may matter where the later failure qualitatively affects it. The limitation context considered in Donovan v Gwentoys Limited [1990] 1 WLR 472 did not govern a prospective procedural extension.

5. The apparent weakness of a claim will rarely justify refusing a prospective extension unless the court can conclude that the claim would be struck out under rule 3.4(2)(a) or (b), or that the defendant would obtain summary judgment under rule 24.2. Refusal below those thresholds would be draconian and might infringe article 6 of the European Convention on Human Rights. A defendant relying on the merits should give the claimant notice and should desirably issue the corresponding strike-out or summary judgment application. Neither requirement was satisfied here.

1. Court of Appeal (Civil Division): The claimant's appeal was allowed unanimously. The order of His Honour Judge Collins was discharged and the district judge's order extending time was restored: [2003] EWCA Civ 299.
2. Central London County Court (His Honour Judge Collins CBE): The defendant's appeal was allowed, the extension was refused and the action was dismissed.
3. Central London County Court (District Judge Wigfield): The claimant's prospective application was granted and time for serving particulars of claim was extended to 17 October 2001.