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6-05-2014

A recent case demonstrates some measure of proportion (not proportionality) in court procedure. In Kaneria v Kaneria and others [2014], an order provided that the first to fifth respondents were to serve and file their defence(s) in relation to a preliminary issue by 14 February 2014. They applied under CPR 3.1(2)(a) for an extension of time for service of their defences.

The application was issued before the time for compliance with the order had expired. D opposed that application, and applied for an order that the respondents be debarred from defending the petition.

A question arose as to whether the principles concerning relief from sanctions, in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 (Mitchell), applied in the instant case. In particular, whether an in-time application for an extension of time to comply with a court order could be treated as an application for relief from sanctions pursuant to CPR 3.9.

Consideration was given to Robert v Momentum Services Ltd [2003] EWCA Civ 299 as well as to the overriding objective of the CPR, as amended in the light of the 'Jackson reforms', which included the objective of enabling the court to deal with cases justly and at proportionate cost; especially CPR 1.1(2)(f), concerning enforcing compliance with rules, practice directions and orders.

The court ruled that the Mitchell guidelines did not apply, either directly or in a slightly watered down version, to an in-time application for an extension of time. The court was bound by the decision in Robert, which remained good law and was authority for the proposition that an in-time application should not be treated as if it were an application for relief from sanctions, but should be judged against the CPR overriding objective.

In applying the overriding objective, sub-para (f) was not given the paramount status that it had in an application under CPR 3.9. Accordingly, an in-time application for an extension of time of the kind in the instant case was to be decided by reference to the overriding objective, as reformulated to include the new subparagraph (f), but without giving it paramountcy.

On these facts, the overall aim of dealing with the case justly under CPR 1.1(1) pointed to only one outcome, which was to grant the extension. An extension of time would be granted so D’s cross-application fell away

Kaneria v Kaneria and others [2014] EWHC 1165 (Ch) 15 April 2014 Mr Justice Nugee

Frances Coulson (fcoulson@moonbeever.com)

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained in this e-alert. Should you wish to instruct us on any detailed matter, please contact Frances Coulson.

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