Hallam Estates Ltd & Anor v Baker

An application filed before the expiry of the prescribed period for taking a procedural step is an application for an extension of time, not for relief from sanctions. That remains so where the court determines the application after the period has expired.

A court may grant a reasonable extension which neither imperils a hearing date nor disrupts the proceedings. The stricter approach to unjustified delay does not require parties or courts to refuse such an extension.

Under rule 47.9(5) of the Civil Procedure Rules 1998, a default costs certificate cannot be issued after points of dispute have been served, even if they were late.

The appellants were paying parties in detailed assessment proceedings following unsuccessful defamation litigation. They filed an application at the Senior Courts Costs Office, before the 21-day period expired, seeking an extension to serve points of dispute. The costs judge granted the extension and later refused the receiving party’s application to set it aside.

On appeal, a High Court judge held that the application had been made out of time and was therefore an application for relief from sanctions. He set aside the costs judge’s order, treated the subsequently served points of dispute as ineffective, and directed the issue of a default costs certificate.

The central issues were whether the extension application was in time and whether the High Court judge could direct a default costs certificate after points of dispute had been served.

1. Appeal allowed. The Court of Appeal held that the High Court judge erred in overturning the costs judge’s decisions.

2. The application notice was filed on 14 May 2013, before the period for serving points of dispute expired. Under rule 23.5, the subsequent date-stamping of the application by court staff was immaterial. The application was therefore an in-time application to extend time under rule 3.1(2)(a) of the Civil Procedure Rules 1998, not an application for relief from sanctions.

3. Robert v Momentum Services Limited [2003] EWCA Civ 299 established that characterisation. It remains correct after the civil justice reforms. The relief-from-sanctions principles in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 were consequently inapplicable.

4. The costs judge properly exercised case-management discretion. The requested extension was reasonable, did not threaten a hearing date or disrupt the proceedings, and the receiving party had herself delayed commencement of detailed assessment. Rule 1.1(2)(f) did not require refusal of a reasonable extension in those circumstances.

5. Although unnecessary to the disposition, the court held that a default costs certificate could not have been directed. Rule 47.9(5) prevents its issue once points of dispute have been served, whether they were served before or after the permitted period. A receiving party must therefore request the certificate after expiry of time but before service of points of dispute.

• Court of Appeal (Civil Division): Allowed the paying parties’ appeal in [2014] EWCA Civ 661 and restored the effect of the costs judge’s extension of time.
• High Court, Queen’s Bench Division: Allowed the receiving party’s appeal from the costs judge, set aside the extension, treated the points of dispute as ineffective, and directed a default costs certificate. No citation was stated in the judgment.
• Senior Courts Costs Office: The costs judge granted an extension of time to serve points of dispute and refused to set that order aside.