Fosberry & Anor v Revenue and Customs

When deciding whether to extend time under Civil Procedure Rules 1998, Part 3.9, delay is one factor among several. The central practical question is whether allowing the late step would cause relevant prejudice: an inability or difficulty in preparing to meet points which would not have existed had they been raised in time. Unexplained delay is regrettable but does not automatically justify refusing an extension. The court must exercise its discretion fairly and without regard to the relative resources or status of the parties. Where the additional appeal points are discrete and can be answered from the existing agreement and a limited group of documents, relevant prejudice may be absent.

The applicants appealed against Master Wright’s assessment of their costs at nil following alleged material failures to comply with the Conditional Fee Agreement Regulations 2000. Briggs J granted permission to appeal, and HM Revenue and Customs later obtained from Warren J an extension of time to file and serve a respondent’s notice raising four additional points concerning the conditional fee agreement.

The applicants applied under Warren J’s order to discharge the extensions. They relied principally on the respondents’ unexplained delay and the alleged prejudice caused by widening the issues shortly before the appeal hearing. The central issue was whether the delay and late respondent’s notice justified setting aside the extension.

1. Application dismissed. The applicants failed to establish relevant prejudice sufficient to justify discharging Warren J’s order.
2. Under CPR 3.9, delay is only one of the factors relevant to the exercise of the court’s discretion. Although the respondents’ delay was considerable and largely unexplained, that circumstance did not determine the application. The court had to ask whether allowing the respondent’s notice would cause real prejudice in the relevant sense.
3. Relevant prejudice meant an inability or difficulty in preparing to deal with the additional points where that inability or difficulty would not have existed had the points been raised in time. The three points concerning the terms of the conditional fee agreement could be dealt with by examining the agreement and the applicable regulations. They were discrete and were unlikely to add materially to the hearing.
4. The fourth point, concerning whether the effect of the agreement had been properly explained, required consideration of five identified documents in light of Regulation 4.3. The applicants had sufficient notice and showed no practical difficulty in addressing it.
5. The court rejected the suggestion that procedural fairness required refusing relief merely because the respondent was a large and well-resourced public body. The discretion had to be exercised without fear or favour. The late respondent’s notice could therefore be relied upon at the forthcoming appeal.

The applicants had appealed against Master Wright’s costs assessment and obtained permission from Briggs J. HM Revenue and Customs obtained an extension of time from Warren J to file and serve a respondent’s notice. The present court refused the applicants’ application to discharge that extension.