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Queen’s Bench, Chancery Division
15 April 2014
An application for an extension of time made ‘in- time’ was to be decided by reference to the overriding objective and not to the guidelines in Mitchell v News Group Newspaper Ltd  EWCA Civ 1537,  1 WLR 795.
The respondents applied for an extension of time to serve their defence in an unfair prejudice petition made by the petitioner.The respondents were ordered to file their defence by 14 February 2014.On 29 January and 5 February, their solicitors requested an extension of time to serve their defences, citing counsel’s commitments as the reason for the extension.The petitioner’s solicitors did not reply until 10 February and refused to agree to the extension.Subsequently, the respondents made an application on 11 February.
The petitioner issued an application seeking an order to debar the respondents from defending the preliminary issues and attached a draft order which would have the effect of deciding the preliminary issues in his favour.The petition argued that the case of Mitchell made it clear that court orders were to be complied with and that the party applying for the extension of time had to show good reason, which they had not done.Article continues below...
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It was held that the application was issued before the time for compliance expired and therefore was referred to as an “in – time” application.In contrast an application made after the time for compliance had expired was an “out of time” application.In the case of Robert v Momentum Services Ltd  EWCA Civ 299 it was expressly held that an in –time application for an extension of time was not, and should not be treated as, an application for relief from sanctions. Robert remains good law and the judge was bound by that decision.The Mitchell guidelines did not apply directly to in-time applications.The consistent message from other cited authorities were that the party requiring more time for a procedural step should not just ignore the problem but should ask the other side for consent, and if consent is not forthcoming, should make an in-time application for an extension: and conversely that the other side should respond positively and in a spirit of co-operation to reasonable requests for consent rather than “cry foul” and seek to take opportunistic advantage of the other party’s difficulties. As far as practicalities are concerned it would not be difficult to see that if Mitchell guidelines applied to in-time applications, there is a risk in every case that a request for an extension would be declined by the other party in the hope of persuading the Court to refuse an extension and thereby gain a significant advantage. In applying the overriding objective, the court stated to refuse the extension would result in the respondents losing the preliminary issues by default, without a trial or the opportunity to put forward their evidence.The granting of an extension of time would not have any impact on the court timetable or court users.
This is a useful case for practitioners as it highlights the benefits of issuing prompt ‘in-time’ applications for an extension of time even where it has not been possible to obtain the agreement of the opposing party. Such applications will be considered more favourably by the courts and will not be subject to the strict guidelines of Mitchell but rather the overriding objective.