Byers & Ors v Samba Financial Group

An application to extend a procedural deadline is governed by the overriding objective where it is not an application for relief from sanctions. An extension should be granted only where it is reasonable in all the circumstances and does not imperil the hearing date or disrupt the orderly preparation of the proceedings. The applicant must provide full and satisfactory evidence explaining the need for the extension, including any alleged external obstacle and the realistic prospect of resolving it. The court may refuse a further extension where the evidence is incomplete, the application is late, prejudice to the other party is inadequately addressed, and compliance would materially interfere with the trial timetable.

The claimants, liquidators of Saad Investment Company Limited, sought equitable relief against the defendant bank concerning the transfer of shares allegedly held on trust. Disclosure by the defendant was central to the issues concerning the bank’s knowledge of the alleged trust and breach.

The defendant applied on the final day of an existing disclosure deadline for a further extension to 10 January 2020. It relied on correspondence from the Saudi Arabian Monetary Authority and asserted that disclosure depended on obtaining its approval. Earlier extensions had been granted, but the defendant had been criticised for delay and non-compliance. The central issue was whether a further extension was reasonable and consistent with the overriding objective.

1. Application refused. The defendant was granted no further extension of time for standard disclosure. The remainder of the related applications was adjourned to a hearing not before 14 January 2020.
2. The application was not one for relief from sanctions. It was therefore governed by the overriding objective of dealing with cases justly. The court accepted the principle stated in Hallam Estates Ltd v Baker [2014] EWCA Civ 661 that the objective is generally furthered by reasonable extensions which neither imperil hearing dates nor otherwise disrupt the proceedings.
3. The proposed extension was not reasonable. The defendant’s evidence was incomplete and failed to establish a realistic prospect that the Saudi Arabian Monetary Authority would change its position by 10 January 2020 or at all. The defendant had also failed to explain adequately its dealings with the Authority, had applied at the last minute, and had not properly addressed the prejudice to the claimants.
4. The disclosure timetable was closely connected with the exchange of witness statements, expert evidence and the six-week trial. Disclosure by 10 January would make the existing timetable practically impossible, given the likely volume of documents and the time required for detailed review.
5. The court considered, but did not make, an unless order. Questions concerning the proper scope of any sanction, including whether compliance might expose the defendant to criminal proceedings in Saudi Arabia, required a longer hearing. The refusal of an extension was based on the absence of a proper case, the unreasonableness of the proposed extension and its likely interference with orderly trial preparation.
6. The defendant’s failure promptly to disclose the earlier correspondence and seek variation of the previous order was blameworthy. The court left open the later assessment of prejudice, any application for relief, variation of the disclosure orders and possible striking out of all or part of the defence.