Safin (Fursecroft) Ltd v The Estate of Dr Said Ahmed Said Badrig (Deceased)

The Civil Procedure Rules confer a real discretion to extend time for complying with a consent order, including one embodying a substantive settlement and stating that time is of the essence. The discretion is not confined to unusual or exceptional circumstances. The court must consider all the circumstances and give substantial weight to the parties’ agreement, although that agreement is not automatically decisive. In relief from forfeiture cases, re-entry is treated as security for rent. An extension may therefore be granted where it is just and equitable, although the power is exercised sparingly. An application made before expiry, subsequent compliance with all conditions, and the substantial disparity between the lease value and the sums due supported the extension.

Safin sought possession and forfeiture of a residential lease for rent and service-charge arrears and other breaches. The parties later entered into a consent order granting relief from forfeiture if specified payments, works, certificates and ongoing occupation payments were made by stated dates, with time made of the essence.

The defendant complied late and applied for an extension before the deadlines expired. His Honour Judge Mitchell extended time on 25 July 2014. Safin appealed, arguing that the substantive settlement allocated the risk of non-compliance and that the court lacked jurisdiction, or could act only in exceptional circumstances. The central issue was the scope and exercise of the court’s power under the Civil Procedure Rules.

Appeal dismissed. The Chancellor, with Bean LJ and King LJ agreeing, held that the judge had made no error of principle and that his decision fell within the range of reasonable decisions.

1. Jurisdiction and discretion. The Civil Procedure Rules, including the overriding objective and the power to extend time for compliance with an order, confer a real discretion. That discretion applies to a consent order embodying a contract which settles the substantive dispute, even where the order states that time is of the essence. The discretion is not subject to a prescriptive requirement of unusual or exceptional circumstances. The weight given to the parties’ agreement depends on all the circumstances. A substantive settlement will receive very great, and often decisive, weight, but it is not inherently decisive.
2. Relief from forfeiture. The court must exercise the power sparingly. A tenant seeking further indulgence must show good grounds and must not treat compliance casually. Equity regards forfeiture for non-payment of rent as security for the rent, so further time may be granted where justice and equity require it.
3. Distinct jurisdictions. The restrictive principles governing modification of voluntary undertakings, including the requirement for special circumstances, and the supervening-event approach to setting aside ancillary-relief consent orders did not govern an application under the CPR to extend time for compliance with this consent order. Earlier decisions adopting a requirement of exceptional circumstances had been overtaken by the analysis in Pannone LLP v Aardvark Digital Limited [2011] EWCA Civ 803.
4. Application. The extension application was made before expiry; all conditions had been satisfied by the hearing; and the long residential lease was worth almost £1 million more than the sums due. Those matters entitled the judge to conclude that refusal would be unjust and that an extension was appropriate.

• Court of Appeal (Civil Division): Dismissed Safin’s appeal from the order dated 25 July 2014, which had extended time for compliance with the consent order. The appeal had been directed to the Court of Appeal under CPR 52.14(1)(a): [2015] EWCA Civ 739.
• Central London County Court: His Honour Judge Mitchell extended the defendant’s time to comply with the conditions for relief from forfeiture.