FRY & Ors, R (on the application of) v Secretary of State for Defence

Court-ordered deadlines must be observed. An opposed application to extend time will not be granted without good reasons; generic explanations are unlikely to suffice. The applicant should apply before the deadline and provide detailed, candid evidence explaining the steps taken, when difficulty became apparent, and the effect on other parties. Prejudice may be assumed where an extension substantially reduces another party’s preparation time. Repeated, inadequately explained breaches may justify costs sanctions and stricter requirements for future applications.

The Secretary of State for Defence applied for further time to file evidence, disclosure and a skeleton argument in three linked judicial review claims brought by Afghan nationals seeking relocation to the UK. The claims challenged decisions concerning relocation and support, and had been listed together because their outcome could affect other cases. Court directions had set and then varied filing deadlines, but the Secretary of State repeatedly applied for extensions after deadlines had passed. The latest application was made shortly before the substantive hearing. By the hearing on the application, some material had been filed, but the claimants said there was insufficient time to consider it and prepare. The court considered the application’s effect on the claimants, the listed hearing and court resources, and the directions and costs that should follow.

1. The court ordered the substantive hearing to be relisted during Michaelmas Term, with a further directions hearing and a revised timetable. The Secretary of State was ordered to pay specified costs, including on the indemnity basis, and could not recover the costs of preparing documents filed in breach of the directions.

2. Deadlines set by the court, including by court lawyers exercising delegated powers, and deadlines under the CPR or Practice Directions must be met. Extensions can disrupt the other parties’ work and the court’s business. Where an extension would substantially reduce the time available to another party to prepare, prejudice may be assumed. The court cited R (Liberty) v Secretary of State for the Home Department [2018] EWHC 976 (Admin) as an example of the importance attached to compliance.

3. An opposed application for an extension should be made well before the deadline and will not be granted without good reasons. Generic reasons are unlikely to suffice. The applicant should explain what steps were taken and when, when the risk of default became apparent, why an earlier application was not made, and what was communicated to the other parties. A witness statement from the lawyer with conduct will often be required, and the duty of candour applies.

4. The Secretary of State’s repeated late applications, unsupported by adequate evidence, gave no proper basis to conclude that the team had done all it could. The claim that some claims might have become academic did not remove the obligation to comply with existing directions: a party relying on changed circumstances must apply to vary or discharge them. The late, substantial material left the claimants without sufficient preparation time, so the hearing had to be relisted.

5. For any further unagreed application to vary directions, the Secretary of State was required to provide detailed evidence from a lawyer with conduct, identify the person who decided to seek an extension, and confirm that person had read the judgment. Such applications were to be referred to a designated judge, who could require the witness to attend and be cross-examined. A copy of the judgment was to be sent to the Treasury Solicitor.