As noted in previous blog entries, post April judges have been encouraged to take a much firmer line with applications for relief from sanctions – see for example Venulum Property Investments Ltd v Space Architecture Ltd [2013[ EWHC 1242 (TCC); Thevarajah and others v Riordan and others (9/08/13).
However, Rayyan Al Iraq Co Ltd v Trans Victory Marine Inc (23/8/13) provides a useful counter-example for a party seeking relief for a relatively small error with little or no consequence. There, the claimant, through oversight, served the Particulars of Claim two days late. The claimant made a retrospective application to extend time, which was opposed. The judge noted the new CPR 3.9 and the change in the attitude of the courts, but held that this did not mean relief should be refused where that would be disproportionate and give the other side an unjustified windfall. In the circumstances, the judge did not consider the delay affected the administration of justice. The delay was caused by a mistake, while regrettable this was not egregious; an explanation had been given; the application had been made promptly. The claim had been brought in time. The judge also expressed the view that the defendant ought not to have sought to exploit this error. It seems to this author that the result might well have been different had there been a background of failure to comply with orders and less of a good explanation for the error.
Is taking advantage of a procedural or court ordered time bar an unjustified windfall? In the context of limitation, in Howard v Fawcetts Lord Scott (at 32) explained that time limits were an attempt to strike a balance between competing interests. But it must be right that, in the case of a very short delay for which there is a good explanation; absent a history of procedural failure; and if there is no prejudice to the other side in granting relief, not doing so would be to provide the other side with a windfall.