Whessoe Oil & Gas Ltd & Anor v Dale

When deciding whether to extend time for compliance with a case-management order, the court may weigh the party’s responsibility for delay, the extent of any material outside its control, prior indulgence, prejudice caused by continuing uncertainty, and the need to preserve an effective timetable. A statement of truth is an important safeguard. Parties must not provide knowingly or recklessly inadequate particulars where better information is available. A short extension may be granted, but it may properly be imposed on an unless basis where the defaulting party has caused delay or misled the court.

The claimants applied for a two-week extension to comply with an order requiring particulars of breach, causation and loss by amended Particulars of Claim. The order had followed an earlier finding that the original pleading was wholly inadequate.

The claimants relied on delay in obtaining and processing a project hard drive held in New York, together with difficulties encountered by their solicitors’ information-technology department. The defendant opposed the extension. The court also considered the claimants’ failure to track the delivery, the availability of other relevant servers, the inadequacy of the original statement of truth, and the continuing uncertainty caused to the defendant.

The central issue was the length and terms of any extension, including whether compliance should be required on an unless basis.

1. Extension granted in part. The court granted a short extension of time, requiring compliance with the order of 25 June 2012 by 3 pm on 2 August 2012. Unless the first claimant complied, its claim and Particulars of Claim would be struck out and judgment entered for the defendant.
2. In exercising its case-management discretion, the court considered the causes of delay and attributed responsibility between matters outside the claimants’ control and matters for which they were responsible. The hard-drive problems and the solicitors’ information-technology difficulties justified some additional time. The failure to track the delivery, and the failure to use other available servers and information while awaiting the hard drive, materially weakened the claim for the full extension sought.
3. The claimants had received substantial indulgence. The original pleading had asserted losses of approximately £50.6 million without adequate particulars, although the claimants knew, or must have known, that better information was available before disclosure. That assertion, supported by a statement of truth, was unacceptable and amounted to misleading the court and the defendant. A statement of truth under the CPR is an important safeguard and must be treated accordingly.
4. The shorter extension reflected the limited period arguably caused by matters beyond the claimants’ control, the need for focused work, the defendant’s continuing uncertainty, and the importance of preserving a prompt hearing before the judge managing the case. The restored strike-out application was listed for 3 August 2012.
5. Permission to appeal was refused. The decision was a case-management decision; the claimants were partly responsible for the delay, and the misleading pleading was a relevant factor in the earlier strike-out order and the present indulgence.

The judgment was a first-instance case-management decision. It refers to an earlier order made by the same court on 25 June 2012 requiring further particulars and to a restored strike-out application listed for 3 August 2012. No appellate decision is stated.