Billington v Davies & Anor

On an application to extend time for filing a Defence, the court must apply the same, or analogous, principles as on an application for relief from sanctions. The court should assess the seriousness and significance of the default, the reasons for it, and all the circumstances. Lack of funding and without prejudice negotiations will not ordinarily constitute good reasons for failing to comply with a procedural deadline. The merits should generally be considered only where the claim or defence is obviously very strong or very weak, and then without conducting a mini-trial. A late Defence is not a Defence for the purposes of CPR 12.3(2)(a) unless it was served in time or an extension has been granted.

The claimant sought default judgment after the first defendant failed to file a Defence by 4 January 2016. The Defence was filed and served on 17 May 2016, shortly before the hearing of the default judgment application. The first defendant then applied for an extension of time, relying principally on lack of funding and without prejudice negotiations. The court also considered whether the late filing prevented default judgment under CPR 12.3(2)(a), and which principles governed the extension application.

1. Late Defence and default judgment. A document served late is not a Defence for the purposes of CPR 12.3(2)(a) unless it was served within the permitted period or an extension of time was granted. The contrary argument was rejected.
2. Applicable test. Following Sayers v Clarke Walker [2002] 1 WLR 3095, and the confirmation of that approach in R (On the application of Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472, an extension application is to be approached by reference to the principles applicable to relief from sanctions. The court must consider the seriousness and significance of the default, the reasons for it, and all the circumstances, applying the framework in Denton v TH White Ltd [2014] 1 WLR 3926.
3. The failure to file a Defence for more than four months, together with the resulting loss of the original hearing and impact on the efficient progress of the litigation, was serious or significant. Lack of funding was not a good reason. Nor could without prejudice negotiations unilaterally suspend procedural deadlines. The parties could agree an extension where permitted or seek an order from the court.
4. The perceived uncertainty following Attorney General of Trinidad & Tobago v Matthews [2011] UKPC 38 did not justify the default. The merits of the claim or Defence could be considered only where they were very strong or very weak and the issue could be resolved without a mini-trial. Applying that guidance, the court declined to assess the apparent weakness of the Defence.
5. The application to extend time was dismissed. The remaining default judgment application was to be dealt with subsequently.