Joan Angela Kember v (As Personal Representative of the Estate of Leonard John Kember, Deceased And On Her Own Behalf And On Behalf of His Dependants)

Where Civil Procedure Rules 1998 rule 15.4 and the relevant orders prescribe no sanction for late service of a Defence, the appropriate application is for an extension of time, rather than relief from sanction. The court should apply the three-stage approach in Denton v TH White Ltd.<\/p>

At the third stage, the court must assess all the circumstances, including the effect of the breach on the litigation, the need for efficient and proportionate conduct, and the need to enforce compliance with rules and orders. The breach must be considered in its procedural context, including earlier extensions and the parties’ conduct. A non-material misdirection does not require an appellate court to interfere where the decision would inevitably have been the same.

The claimant brought clinical negligence proceedings arising from Leonard John Kember’s death. The defendants failed to serve their Defence by the final extended deadline and later applied for an extension of time and relief from sanction. Master Gidden refused both applications on the basis that the breach was serious and significant, there was no good reason for it, and the defendants’ conduct showed insufficient regard for procedural deadlines.

The defendants appealed, arguing that relief from sanction was unnecessary, that the application for an extension had been prompt, and that the Master had wrongly considered the history of earlier extensions when assessing the breach. Permission to appeal was granted on the papers.

1. Appeal dismissed. The Master had wrongly treated the application as involving relief from sanction and had considered the supposed delay in making that application. Since Civil Procedure Rules 1998 rule 15.4 and the court orders prescribed no sanction for late service of the Defence, the proper application was for an extension of time.
2. The extension application was nevertheless governed by the three-stage approach in Denton v TH White Ltd: the seriousness and significance of the breach; whether there was good reason; and all the circumstances, including the effect on the litigation and the need to enforce compliance with rules and orders.
3. The breach was serious and significant, and there was no good reason for it. The third-stage assessment properly included the repeated earlier extensions, the delay in preparing and approving the Defence, the stalling of case management, prejudice arising from further delay, and the defendants’ relaxed approach to procedural requirements. The court was entitled to consider the breach in its full context.
4. The Master’s error concerning the timing of the application was immaterial. Even if the court exercised the discretion afresh, the defendants’ repeated disregard of deadlines meant that refusal was proportionate. The defendants could consequently defend only the issue of quantum.
5. The court also observed that filing an application by fax after the deadline would be effective only in exceptional circumstances of unavoidable emergency. Those circumstances were absent here.

• High Court (Queen’s Bench Division): Master Gidden refused the defendants’ applications for an extension of time to serve the Defence and for relief from sanction on 26 April 2019.
• High Court (Queen’s Bench Division): Permission to appeal was granted on the papers by Sir Alastair MacDuff on 5 June 2019. Lambert J dismissed the appeal.