James Fisher Everard Ltd & Ors v European Diesel Services

An application made before the deadline for serving a defence is an in-time case-management application, not an application for relief from sanctions. The court may extend time under CPR 3.1(2)(a), applying the overriding objective in CPR 1.1. The court weighs the competing disadvantages of granting or refusing the extension, including prejudice, proportionality, expedition, compliance with rules and the need for a properly particularised pleading. Absence of prejudice is relevant but is not, by itself, decisive. Parties should seek consent and act cooperatively, while an applicant must explain with sufficient evidence why the additional time is needed.

The claim concerned alleged defects in parts supplied for, and work performed on, diesel engines installed in two vessels. The defendant required technical material and expert input to formulate its defence. Before the time for serving the defence expired, it applied for an extension until 17 May 2021. The claimants opposed the application, relying on the time already available and the limited detail given for the requested period.

The central issues were whether the application was an in-time extension application or relief-from-sanctions application, what principles governed the exercise of the court’s case-management power, and what period was reasonably necessary to prepare a properly particularised defence.

1. Application and governing power. The application was made before expiry of the time for service and was therefore an in-time application for an extension, rather than an application for relief from sanctions. Under CPR 3.1(2)(a), the court had power to extend the time for compliance with a rule, applying the overriding objective in CPR 1.1.
2. Applicable approach. The court had to weigh the respective disadvantages of granting or refusing the extension. The absence of significant prejudice to the opposing party remained material, but was not sufficient by itself. The court also had to consider proportionality, expense, expedition, compliance with rules and the efficient use of court resources. Parties should seek consent to reasonable extensions and should adopt a cooperative approach. An applicant must explain why the extension is required, and the court will scrutinise the reasons and supporting information.
3. Application to the evidence. The defendant’s evidence initially lacked sufficient particularity. Oral clarification showed that further time was reasonably required to assemble documents for the expert, obtain the expert’s comments and finalise the defence. A full expert report was unnecessary; commentary sufficient to particularise the defence was enough. The Commercial Court required a defence identifying the true factual and expert issues so that case management could proceed efficiently and without disproportionate repeated amendments.
4. Order. The application was granted as to duration only to a limited extent. Time for service of the defence was extended by five weeks from 19 March 2021. The extension was not made an unless order. Any further significant extension would require a change of circumstances and hard evidence justifying it.