Serious Fraud Office & Anor v Litigation Capital Ltd & Ors

An in-time application to extend a procedural deadline is governed by the overriding objective rather than the relief from sanctions framework. The court should assess the practical effect of the extension in the circumstances of the litigation, including fairness, costs, efficiency, responsibility for delay and any risk to the trial timetable. Where a settlement may materially narrow the issues, an extension may be justified to permit necessary sanctions hearings, provided preparation for trial remains protected. Appropriate safeguards may include requiring later pleadings to identify changes to existing statements of case.

This was a case management conference in complex proceedings concerning competing claims to assets connected with Orb and related litigation. Certain parties had reached a partial settlement, but the settlement required sanction by courts in Jersey, the British Virgin Islands and the Isle of Man. A previous order had stayed directions and required a consolidated pleading before the present conference.

The sanctions hearings had been delayed, and the consolidated pleading had not been served. The settling parties sought an extension of time, a further case management conference and liberty to seek a further extension. The central issue was how the proceedings should be managed while the settlement remained subject to sanction.

1. Applicable framework. The court held, applying [2014] EWCA Civ 1633 at [26]–[28], that an in-time application for an extension of time is determined under the overriding objective, rather than the relief from sanctions framework.
2. Extension justified. The considerations supporting the earlier adjournment remained materially applicable. Allowing time for the settlement to be sanctioned offered potential costs savings and procedural efficiencies in a highly complicated case. The settling parties were not at fault for the delay in obtaining the BVI sanctions hearing.
3. Trial timetable protected. On the material before the court, the extension sought would not threaten the January 2021 trial. No additional disclosure was required apart from one discrete matter, and the consolidated pleading was expected to reduce or maintain the issues rather than introduce new ones. A further round of responsive pleadings was therefore unnecessary.
4. Case-management safeguards. The court declined to order production of a draft consolidated pleading. It considered it helpful, however, for the eventual pleading initially to include paragraph references showing where each allegation had appeared in the existing statements of case. Costs arguments could be raised if non-settling parties incurred costs addressing issues later abandoned.
5. Order. The period for service of the consolidated pleading was extended to 13 July 2020, and a further case management conference was fixed for a date between 20 and 31 July 2020. The court warned that any further application to adjourn the trial would require compelling circumstances.

Not an appeal. The ruling followed an earlier case-management order by Mrs Justice Moulder vacating the original trial listing, staying directions and requiring a consolidated pleading and further case management conference.