IN THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL CIVIL APPEAL NO. 44 of 2014 BETWEEN ROLAND JAMES Appellant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Respondent PANEL: Mendonça, J.A. Jamadar, J.A. Rajnauth-Lee, J.A. Appearances: For the Appellant Mr. Ramdeen and Mr. Debideen. For the Respondent Mr. Hector. Date of delivery: December 19 th 2014 Page 1 of 19
I agree with the judgment of Mendonça J.A. and have nothing to add. P. Jamadar, Justice of Appeal I too agree. M. Rajnauth-Lee, Justice of Appeal JUDGMENT Delivered by A. Mendonça, J.A. 1. This is an appeal from the order of the case management Judge granting an extension of time for the service of the defence of the Attorney General who is the defendant in this claim. 2. In this claim the claimant, who is the Appellant, claims damages for unlawful arrest and false imprisonment against the defendant who has been sued pursuant to the provisions of the State Liability and Proceedings Act, Chap.8:02. A pre-action letter was written to the defendant on July 23 rd 2014 but there was no response. The proceedings were commenced on September 4 th 2013 with the filing of a claim form and statement of case. 3. The claimant alleges that in the early hours of March 17 th 2013 he was approached by a police officer in a marked police vehicle. The officer asked him, where you and yuh friends drop the steel? The claimant replied that he did not know what the officer was talking about. The officer then ordered the claimant to sit in the boot of the vehicle. He was then transported to the Four Roads Police Station where he was accused of stealing a quantity of steel. The claimant was detained until approximately 7:30 a.m. that day when he was released. While he was detained, the claimant claims that he was treated in a hostile manner and kept in a filthy cell. 4. The claim form and statement of case were served on the defendant on the same day they were filed, i.e. September 4 th 2013. The period for filing of the defendant s defence was forty-two Page 2 of 19
days after the date of service of the claim form and statement of case (see rule 10.3(3)) of the Civil Proceedings Rules (the CPR). However, as they were served on September 4 th 2013 during the long vacation, the time for the service of the defence did not run (see rule 2.9). This therefore meant that the defendant had until October 28 th 2013 to serve his defence. 5. The defence was not filed by that date. On November 11 th 2013 the defendant entered an appearance giving notice of intention to defend. On November 14 th 2014 the defendant filed a notice of application for an extension of time to file its defence pursuant to rule 10.3(5). On the same day the claimant filed a notice of application for permission to enter judgment in default of defence. 6. In the affidavit in support of the claimant s application for permission to enter judgment, the deponent stated that the claim form and statement of case were filed and served and that although the time for the filing of the defence had expired it had not been filed. It was noted that at the time of the swearing of the affidavit the defendant had not applied for an extension of time for the service of the defence; however an appearance had been entered. The claimant s application was made under rule 12.2(2)(a) which provides that: A claimant needs permission from the court if he wishes to obtain default judgment on any claim which is - (a) a claim against a State. 7. The defendant s application for an extension of time, as I have mentioned, was made pursuant to rule 10.3(5) which provides that: A defendant may apply for an order extending the time for filing a defence. 8. The application was supported by an affidavit sworn by Ms. Andella Ramroop, instructing attorney for the defendant. In that affidavit she stated that the claim form and statement of case were served on or about September 4 th 2013, however due to administrative delays she received conduct of the matter on or about November 8 th 2013 and she caused an appearance to be entered on November 11 th 2013. She then stated: Page 3 of 19
5. I wrote a memorandum dated 11 th November, 2013 to the Police Legal Unit, wherein I requested instructions in the relation to the instant matter... 6. Contrary to Part 58.4 of the CPR, the Claimant had not included sufficient details in his Statement of Case so as to enable the Defendant to identify the Police Officers allegedly involved in this incident and as such, the Defendant requires sufficient time to be able to identify and obtain instructions from same. 7. The Attorney General wishes to defend this matter, and I do not respectfully believe that the Claimant would be prejudiced if we were allowed an opportunity to put forward our Defence. 9. Ms. Ramroop swore a further affidavit which was filed in opposition to the claimant s application for permission to enter judgment. In that affidavit she again stated that, due to an administrative error she did not receive conduct of this matter until November 8 th 2013. She then set out in the following five paragraphs what occurred thereafter and these are as follows: 5. I caused an appearance to be entered on Monday 11 th November, 2013. On even date, I wrote to the Police Legal Unit requesting a copy of the station diary extract for 17 th March, 2013 in order to identify the police officers referred to in the Claimant s Statement of Case since they were not named therein... 6. On 14 th November, 2013, the Defendant applied for an extension of time within which to file its defence... 7. On even date the Claimant filed a Notice of Application seeking to enter default judgment against the Defendant in default of defence. 8. On 9 th December, 2013 the Defendant received a faxed copy of the relevant station diary extract and ascertained the identity of the police officers referred to by the Claimant 9. The said officers attended the office of the Chief State Solicitor in order to give instructions on 16 th December, 2013 as a result of which, a defence, which discloses Page 4 of 19
the Defendant s realistic prospect of success, has been prepared. A true copy of the defence is hereto exhibited and marked A.R.3. 10. The essence of the proposed defence was that there was reasonable and probable cause to arrest the claimant on suspicion that he was involved in the larceny of steel from a construction site. The defendant alleged that on March 17 th 2013 at about 1:20 a. m. to 2:00 a.m. a report was received over the wireless set of the Four Roads Police Station to the effect that some men were reported taking steel from a construction site located at the back of the police station. Officers responded to the report and on arrival in the vicinity of the construction site they saw the claimant who fit the description of one of the persons who was alleged to have taken steel. When questioned the claimant denied knowing anything about the steel but was unable to give a proper account of his presence in the area that hour of the morning and was unwilling to give his name to the police. The defendant denies that the cell in which the claimant was detained was in the condition alleged by the claimant or that he was treated in a hostile manner during the period of his detention. 11. An affidavit was sworn by attorney-at-law for the claimant in response to Ms. Ramroop s second affidavit. In the affidavit Mr. Debideen in relation to the draft defence stated: This Defence discloses that the Defendant has no realistic prospect of success. The Defence is deficient and fails to disclose that the Defendant had reasonable and probable grounds for the Claimant s arrest and detention. This is further compounded by the fact that the Claimant was not charged with any offence. Additionally, the Defendant attaches no documentation in support of its Defence. Crucial to this case are the Station diary Extracts, copies of pocket diaries and the notes of the alleged interview with the Claimant. The Defendant does not disclose any document in support of its proposed Defence. Furthermore, the defence does not disclose the details of the alleged report of the pilfering of the steel nor the details of the descriptions of the alleged offenders that the Police Officers purportedly received and relied on to arrest and detain the Claimant. In these circumstances it cannot be said that the Defendant had any legal justification for the arrest and detention of the Claimant. The Defence confirms that the Claimant was incarcerated at the Four Roads Police Station as alleged by the Claimant without legal justification. 12. He further stated: Page 5 of 19
In response to paragraph 10 of the Defendant s affidavit, it is incorrect to state that the orders and/or directions sought by the Claimant in his application are contrary to the interests of a fair determination of the issues and prejudicial since such recourse is specifically provided for in the CPR when a party does not act in a timely manner. The Claimant is prejudiced by the Defendant s application to extend the time for the filing of its Defence, by not being able to prosecute his Claim in a timely manner. The Claimant was forced to file proceedings upon the failure of the Defendant to respond to his Pre-action protocol letter. In fact, the Claimant can be penalized if he fails to invoke the jurisdiction of the Court, whereby his claim can be automatically dismissed under Part 8.13(5) of the CPR. The application before the Court has been necessitated by the actions of the Defendant itself. 13. Both applications were heard before Boodoosingh, J. He stated that he considered it appropriate to deal first with the defendant s application for an extension of time since if that application were successful that would render the claimant s application for judgment in default of defence of no consequence. He, however, also considered it appropriate to take account of the evidence filed in respect of both applications. Before this Court there has been no challenge to that approach adopted by the Judge. 14. The Judge further noted that no sanction is imposed by the rules for failure to file a defence on time. In exercising the Court s discretion whether to grant an extension of time the Court will take into account all the relevant factors and the overriding objective. Relevant considerations may include the factors set out in rule 26:7 of the CPR but without this stringent mandatory precondition under that rule. He noted that since the Court is exercising a wide discretion in the context that the rule on extension of time does not set out the criteria to be considered, the Court has to consider all the circumstances of the application of which the reason for the breach is but one. 15. In referring to the evidence the Judge stated that the reason for the delay in filing the defence was not the best reasons but the Court had to weigh the competing factors. He made particular reference to the alacrity with which the defendant s instructing attorney acted once she was given conduct of the matter. A draft defence had been prepared which did not contain bare denials but advanced grounds of reasonable and probable cause in response to the claimant s allegations. He then stated: Page 6 of 19
22. In dealing with the case justly an extension in my view would cause no prejudice to the claimant, whereas refusal of an extension would deprive the defendant of the opportunity to defend the claim. The rules require efficiency, but do not demand shutting out a party for a first time default... 23. The court has to consider the application of limited resources and the efficient disposition of claims in keeping with the overriding objective. I am also mindful that the effect of denying the application for an extension may be to effectively shut the door on the defendant. This would not be a proportionate exercise of the court s discretion. To grant the extension does not condone flouting of the rules. The court always has the power to protect its process from abuse and will not hesitate to do so in an appropriate case. 24. The court has to consider an extension of time application in the context of other rules which provide for setting aside a default judgment and the limited criteria there set out. The observations of the Privy Council in Matthews are also particularly apt. The defendant could have proceeded to file its Defence and await any objection by the claimant. Or the defendant could simply wait until default judgment has been obtained and then apply to set aside. To impose overly stringent requirements to obtain an extension of time would in effect be to punish a defendant who chooses to act proactively to get an extension and reward a defendant who chooses to sit back and await the claimant to take up judgment and then say well here is my Defence and it is a good on without having to give an explanation for its delay previously. The Judge therefore granted the defendant s application and extended the time for the filing of his defence to fourteen days from the date of the order. He ordered that the defendant pay the claimant s costs of the application for the extension. The claimant s application for judgment was dismissed with no order as to costs. 16. In view of the significance of rule 26.7 of the CPR to the submissions of Counsel for the claimant, which I will attempt to summarize below, and to this judgment, it is appropriate at this stage to set out the rule in its entirety. Page 7 of 19
Relief from sanctions 26.7 (1) An application for relief from any sanction imposed for a failure to comply with any rule, court order or direction must be made promptly. (2) An application for relief must be supported by evidence. (3) The court may grant relief only if it is satisfied that- (a) the failure to comply was not intentional; (b) there is a good explanation for the breach; and (c) the party in default has generally complied with all other relevant rules, practice directions, orders and directions. (4) In considering whether to grant relief, the court must have regard to (a) the interests of the administration of justice; (b) whether the failure to comply was due to the party or his attorney; (c) whether the failure to comply has been or can be remedied within a reasonable time; and (d) whether the trial date or any likely trial date can still be met if relief is granted. (5) The court may not order the respondent to pay the applicant s costs in relation to any application for relief unless exceptional circumstances are shown. 17. The claimant argued before this Court that the approach of the Judge to the application was all wrong. He applied too low a threshold test in determining the application for an extension of time. He submitted that the Court ought to test the evidence against the rule 26.7 factors without the mandatory threshold requirements and in so doing should attach more weight to the factors under (1), (3) and (4) at rule 26.7(1) and (3) than the factors at rule 26.7(4). Counsel submitted that on the evidence the Court should not be satisfied that there is a good explanation for the breach and that there was no general compliance with relevant rules and practice directions. The defendant had therefore failed to satisfy the Court of 26.7(3)(b) and (c). Further, the application was not made Page 8 of 19
promptly. As regards rule 26.7(4) it was submitted that a proper consideration of the evidence would favour the refusal of the defendant s application. 18. Counsel for the Respondent supported the Judge s conclusion and reasoning. He submitted that on an application under rule 10.3(5) the Court is mandated to exercise its discretion in a manner to give effect to the overriding objective. It is therefore not fatal to an application for an extension of time if a good explanation for the breach is not advanced. In any event he submitted that the defendant in this matter had advanced a good explanation. He contended that the Judge sought to further the overriding objective and his decision was justified on the evidence. In the circumstances it could not be said that his decision was plainly wrong. 19. There is no sanction imposed by the rules for the failure to file a defence within the period for so doing allowed by rule 10.3(3). It was pointed out by the Privy Council in The Attorney General v Keron Matthews [2011] UKPC 38 (at para 14):...a defence can be filed without the permission of the court after the time for filing has expired. If the claimant does nothing or waives late service, the defence stands and no question of sanction arises. If, as in the present case, judgment has not been entered when the defendant applies out of time for an extension of time, there is no question of any sanction having yet been imposed on him. When therefore the defendant applies for an extension of time the application is correctly made under rule 10.3(5) and not under rule 26.7 which deals with applications for relief from sanction. Rule 10.3(5) makes no distinction between applications for an extension of time made before or after the period for filing a defence (see The Attorney General v Keron Matthews Supra). 20. Unlike rule 26.7, rule 10.3(5) does not contain a list of criteria for the exercise of the discretion it gives to the Court. The question then arises, how the Court s discretion is to be exercised. I think because no criteria is mentioned in rule 10.3(5) it was intended that the Court should exercise its discretion having regard to the overriding objective (see Robert v Momentum Services Ltd. [2003] EWCA Civ. 299). Page 9 of 19
21. The overriding objective of the CPR is identified in rule 1.1(1) as enabling the Court to deal with cases justly. Rule 1.1(2) identifies some of the considerations relevant to dealing justly with the case. This rule is as follows: (2) Dealing justly with the case includes- (a) ensuring, so far as is practicable, that the parties are on an equal footing; (b) saving expense; (c) dealing with cases in ways which are proportionate to- (i) the amount of money involved; (ii) the importance of the case; (iii) the complexity of the issues; and (iv) the financial position of each party; (d) ensuring that it is dealt with expeditiously; and (e) allotting to it an appropriate share of the court s resources, while taking into account the need to allot resources to other cases. 22. It is relevant to note that the list in 1.1(2) is not intended to be exhaustive and in each case where the Court is asked to exercise its discretion having regard to the overriding objective, it must take into account all relevant circumstances. This begs the question, what other circumstances may be relevant. In my judgment on an application for an extension of time, the factors outlined in rule 26.7(1), (3) and (4) would generally be of relevance to the application and should be considered. So that the promptness of the application is to be considered, so too whether or not the failure to comply was intentional, whether there is a good explanation for the breach and whether the party in default has generally complied with all other relevant rules, practice directions, orders and directions. The Court must also have regard to the factors at rule 26.7(4) in considering whether to grant the application or not. 23. In an application for relief from sanctions there is of course a threshold that an applicant must satisfy. The applicant must satisfy the criteria set out at rule 26.7(3) before the Court may grant relief. In an application for an extension of time it will not be inappropriate to insist that the applicant satisfy that threshold as the treatment of an application for an extension of time would not be substantially different from an application for relief from sanction. Therefore on an application for extension of time the failure to show, for example, a good explanation for the breach does not Page 10 of 19
mean that the application must fail. The Court must consider all the relevant factors. The weight to be attached to each factor is a matter for the Court in all the circumstances of the case. 24. Apart from the factors already discussed the Court should take into account the prejudice to both sides in granting or refusing the application. However, the absence of prejudice to the claimant is not to be taken as a sufficient reason to grant the application as it is incumbent to consider all the relevant factors. Inherent in dealing with cases justly are considerations of prejudice to the parties in the grant or refusal of the application. The Court must take into account the respective disadvantages to both sides in granting or refusing their application. I think the focus should be on the prejudice caused by the failure to serve the defence on time. 25. So far as the merits of the defence are concerned the applicant is not required to establish that he has a good defence or for that matter to outline the merits of the defence. However where, as in this case, the defendant has put before the Court the proposed defence and the other side wishes to argue the merits of the defence as influencing the outcome of the application for an extension of time, it may not be appropriate for the Court to entertain such an argument unless the claimant has given reasonable notice to the defendant that he intends so to argue. Further, even if such notice has been given it would not be appropriate for the Court to refuse the application for an extension of time unless the Court is able to conclude that an application to strike out the defence under rule 26.2 or an application for summary judgment under rule 15.2 would succeed (see Robert v Momentum Services Ltd. supra). 26. It might be a criticism to what I have said above that as applications for extension of time are intended to be simple and straightforward affairs and to be dealt with swiftly that to approach an application in the way I have suggested will complicate the hearing and delay determination of the application. It may also be said that the approach may encourage parties to unnecessarily resist applications in the hope that they may succeed in persuading the Court that the extension should not be granted and so obtain a summary conclusion of the claim. To this I wish to make the following observations. 27. Firstly, it must be borne in mind that the Court on the hearing of the application for an extension of time is not engaged in a rubber stamping exercise. It must not be taken for granted that such an application, as opposed to an application for relief from sanction, is one that the Court must Page 11 of 19
or would ordinarily grant. Secondly, as has been said before, it was the casual or laissez faire approach to litigation that mandated the repeal of the Rules of the Supreme Court, 1975 and brought the CPR into existence (see Civil Appeal 79 of 2011 and The Attorney General of Trinidad and Tobago v Miguel Regis). The old lax culture is not to be tolerated and while that does not mean zero tolerance the intention of the CPR is to create a culture of compliance. There is therefore a need for compliance with the rules and this applies as much to rules where a sanction is imposed as to other rules where there is none. Thirdly, by identifying the factors that should be considered in the exercise of the Court s discretion, it is the expectation that decisions would be less subjective and be more predictable. Fourthly, I do not see that the approach should cause any increase in opposed applications. First of all it is not new. This has been the approach of the Court of Appeal for some time (see Civil Appeal 83 of 2010 Lincoln Richardson v Elgeen Roberts-Mitchell). Secondly the law is not concerned with trivial or insignificant things. Where therefore the delay is trivial or insignificant I do not expect that such applications would usually be opposed or if it is that it should generally detain the Court for any length of time. Thirdly it is the duty of the parties and their representative to help the Court to further the overriding objective. This is clearly spelt out at rule 1.3 which provides: The parties are required to help the court to further the overriding objective. Parties should therefore work together to ensure that applications for extensions of time are avoided. In relation to that obligation the Court of Appeal of England and Wales in Denton v T.H. White Ltd. and anor. ; Decadent Vapours Ltd. v Bevan and others; Utilise T.D.S. Ltd. v Davies and others [2014] EWCA Civ. 906 (at para 43) made the following comments and observations in the context of an application for relief from sanction which I think are apposite here: The court will be more ready in the future to penalize opportunism. The duty of care owed by a legal representative to his client takes account of the fact that litigants are required to help the court to further the overriding objective. Representatives should bear this important obligation to the court in mind when considering whether to advise their clients to adopt an uncooperative attitude in unreasonably refusing to agree extensions of time and in unreasonably opposing applications for relief from sanctions. It is as unacceptable for a party to try to take advantage of a minor inadvertent error, as it is for rules, orders and practice directions to be breached in the first place. Heavy costs sanctions should, therefore, Page 12 of 19
be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably appose applications for relief from sanctions. If therefore the court is of the view that the claimant s opposition to an application for an extension of time was unreasonable conduct it may under rule 66.6 order the claimant to pay the costs of the application. 28. It follows from what I have said above that applications for an extension of time should generally be supported by evidence. 29. This is an appeal from the exercise of the Judge s discretion. The approach of the Court of Appeal in such a case is well established. The Court will not interfere with the exercise of the Judge s discretion unless it can be shown he was plainly wrong. Unless therefore it can be demonstrated, for example, that the Judge erred in principle or took into account irrelevant considerations or failed to take into account relevant considerations or that his decision is against of the evidence or cannot be supported having regard to the evidence, or that his decisions is beyond the ambit within which reasonable disagreement is possible, the Court of Appeal will not interfere. 30. In this case I do not regard the general approach of the trial Judge as materially different from what I have set out above. But it is however fair to say that he does not appear to have considered all the relevant factors. Further, he misconstrued the evidence when he found that the failure of the defendant to serve his defence was his only default. In the circumstances it is appropriate for this Court to consider all the relevant circumstances as I have set out above. I may however signal that I cannot disagree with the Judge s conclusion to grant the extension of time sought by the defendant for the filing of its defence. 31. The aim of the overriding objective is to deal with cases justly. As I have set out above relevant considerations include the rule 26.7(1), (3) and (4) factors. I will consider them first. 32. The first consideration is the promptness of the application. The application in this matter was filed on November 14 th 2013. According to the defendant s affidavits sworn by Ms. Ramroop, this is six days after the matter was assigned to her and seventeen days after the time for delivery of the defence expired and on the same day an application was made for permission to enter judgment Page 13 of 19
against the defendant. I do not think that on any calculation it can reasonably be advanced that the application was not made promptly in the context of this case. 33. The next factor is whether the failure to comply was intentional. It was submitted by the Appellant that the evidence before the Court did not permit a proper determination of whether the failure to comply was intentional. I however do not agree. 34. According to the affidavits of the defendant the matter was only assigned to Ms. Ramroop on November 8 th 2013 notwithstanding that the claim form and statement of case were served on September 4 th 2013. The reason for that, according to Ms. Ramroop, was because of administrative error or administrative delay in having the matter assigned to an attorney. Whether that explanation constitutes a good explanation for the breach is a matter which I will come to below, but it does not suggest that the failure was intentional but rather administrative bungling as the Judge found. I think when it is considered also that after the matter was assigned to Ms. Ramroop she acted diligently and with alacrity that the reasonable inference is that the failure was not intentional. 35. I refer to the explanation advanced by the Appellant for the breach. The Judge was not impressed. He referred to it as a sketchy assertion of administrative bungling and did not consider it the best of reasons. I think the Judge by referring to it as not the best of reasons was somewhat sympathetic in his description of the explanation. It seems to me that without more of an explanation of the cause of the administrative error or delay itself, it is difficult to conclude that the explanation advanced was a good explanation. I therefore do not consider the explanation advanced for the breach to be a good one. 36. The Judge was of the view that the failure of the defendant to file his defence in time was his only failure to comply with relevant rules, and practise directions. The claimant submitted that the Judge erred in so finding. He submits that the defendant failed to respond to the claimant s preaction protocol letter, failed to request of the claimant an extension of time before filing the application, and entered the appearance out of time. 37. The practice direction governing pre-action protocols does not provide specifically for this type of claim. According to the general provisions however, a defendant is to acknowledge the claimant s letter within seven days of receiving it. In that acknowledgment he should state when the Page 14 of 19
defendant will give a full written response. This was not done and clearly the defendant was in breach of the practice direction governing pre-action protocols. 38. It is correct to say that the defendant did not request an extension of time from the claimant before filing the application for an extension of time. The CPR does provide at rule 10.3(6) that the parties may agree to extend the period for filing a defence up to a maximum of three months. While it is prudent and recommended that the parties try to agree to an extension of time before making an application to the Court and failure to do so may expose the applicant or his legal representative to costs, the rules do not require that there must first be an attempt to agree to an extension before the making of the application. The failure to request an extension therefore cannot be regarded as a breach within the meaning of rule 26.7. In any event I cannot attach any relevance to this factor, as it is clear from the claimant s conduct that had there been a request for an extension of time it would have been refused. 39. With respect to the entry of an appearance, rule 9.1(1) and (2) provides that a party who wishes to contest proceedings and avoid a default judgment being entered against him may enter an appearance containing a notice of intention to defend. The defendant entered an appearance on November 11 th 2013, sixty-eight days after the claim form and statement of case were served. Under rule 9.3(1), the general rule is that the period for entering an appearance is eight days after the date of service of the claim form. This is however inconsistent with section 20(2) of the State Liability and Proceedings Act which provides that the time allowed for filing of a defence or notice of intention to defend shall not be less than twenty-eight days. The rule in relation to the State is therefore inconsistent with the State Liability and Proceedings Act and it cannot be applied to the State. There is however no other provision in the CPR that stipulates the time period within which the State should enter an appearance containing notice of intention to defend. In the circumstances I cannot conclude that the defendant failed to comply with the rules governing the entry of an appearance. 40. The factors outlined at rule 26.7(4), begin with the interests of the administration of justice. This involves consideration of the administration of justice between the immediate parties but it is also necessary to consider the needs and interests of other court users. Clearly as between the parties, the administration of justice would favour the grant of the extension. To refuse the application would mean the defendant would lose by default and be liable to pay damages to the Page 15 of 19
claimant, which will be met by public funds, without a trial and therefore without an opportunity to put forward evidence in support of the defence and to challenge the claimant s claim no matter how weak or unfounded it might be. So far as other court users are concerned, the practical effect is that time has been spent in dealing with the application in the Court below and the appeal before this Court. Had the application not been opposed and the order of the Judge appealed I do not think it would have had any significant impact on the Court s time, nor any significant impact on other court users. What has considerably enlarged the time is the claimant s decision to vigorously oppose the application and subsequently appeal to this Court. I do not think that the claimant should be able to rely on time taken up in that way. As the Court remarked in Kaneria v Kaneria [2014] All ER (D) 30 (at para 71):...I do not think Dilip can rely on the fact that he has chosen to oppose the application as itself a reason for refusing it. To do so would simply increase the temptation for those asked to consent to extensions to refuse to do so and argue at length why they should not be granted. Viewed in that way I do not consider that there is any significant impact on other court users. 41. As regards whether the failure to comply was due to the party s attorney, the defendant in this case is the Attorney General. He is sued under the provisions of the State Liability and Proceedings Act, which allows for the naming of the Attorney General as a party where the State is sued. The claim form and statement of case were served on the office of the Attorney General and then passed to the office of the Chief State Solicitor to enter an appearance and prepare the defence. The office of the Chief State Solicitor is within the Ministry of the Attorney General. In these circumstances I do not think the dichotomy between attorney and client is applicable and I would regard the failure as being due to the party. 42. As I mentioned, the proposed defence has been prepared and accordingly the failure to comply can be remedied within a reasonable time. A trial date has obviously not been fixed so the question whether it can still be met if the extension of time is granted does not arise. 43. As stated before the Court is to exercise its discretion having regard to the overriding objective. Relevant considerations in addition to the factors at 26.7(1), (3) and (4) obviously include those specifically referred to in rule 1.1(2). I think the focus when having regard to these matters should be on the impact the failure to file the defence in time has had on these factors. The first of Page 16 of 19
them is ensuring, so far as is practicable, that the parties are on an equal footing. The aim of this is to ensure as far as possible that there is a level playing field between litigants of unequal finances or resources. Save that it may be said that it would be unequal not to permit the defendant to defend the claim and give judgment to the claimant in default, this factor does not appear to be of any particular relevance in this case at this stage. 44. The next is saving expense. It is true that if the defence were delivered in time the costs of an application to extend the time would not have been incurred. As it was late these costs have been incurred as well as the costs of an application for permission to enter judgment. As regards the costs of the application to extend the time, it was ordered that those costs be paid to the claimant so he has been compensated. The costs of this appeal may fall differently but that would have been not occasioned by the application for an extension of time per se but by the decision of the claimant to lodge an appeal. No order as to costs was made on the application for permission to enter judgment but the costs incurred in relation to that application would not be significant. The extension itself would not cause any additional costs to be incurred that would not have been incurred had the defence been filed in time. In all these circumstances I would not consider this factor as pointing either in favour of or against the grant of an extension. 45. The next factor is dealing with cases in ways which are proportionate to, (i) the amount of money involved; (ii) the importance of the case; (iii) the complexity of the issues; and (iv) the financial position of each party. The only aspect that in my judgment may be relevant here is the financial position of the parties. As I have said above had the defence been served in time certain costs that have been incurred would not have been incurred. But the costs for which the Appellant has not been compensated are not significant and I do not consider that the lateness of the defence would have caused the case to be dealt with in ways that are disproportionate to the financial position of the parties. 46. The next factor is ensuring that the case is dealt with expeditiously. A late defence would probably result in the first case management conference being heard later than would be the case if the defence is in time. The failure to file the defence in time would therefore cause delay in the progress of the matter and would cause it to lose ground in relation to other matters. It must however be borne in mind that the application for the extension of time was filed on November 14 th 2013. Had it been heard within a reasonable time and granted the extension itself would not have Page 17 of 19
caused such a delay that could not have been made up by appropriate directions. Of course given the fact that the application was opposed and there was a subsequent appeal it may now be difficult to make up the time. But if that is so that has been occasioned by the position adopted by the claimant and as I have said earlier the claimant should not be allowed to rely on time taken in that way. 47. Next is allotting to cases an appropriate share of the Court s resources while taking into account the need to allot resources to other cases. I do not think that there is anything more need be said in relation to this factor than what I have said in relation to the interests of the administration of justice earlier in this judgment. 48. Lastly in this matter is the question of prejudice. The prejudice to the defendant if the application were refused is clear. As I have mentioned earlier, if the time for the filing of the defence is not extended the claimant would be able to enter judgment against the defendant. The defendant would be liable to pay damages to the claimant, which of course will be met from public funds. The claimant would succeed without a trial and without having his allegations tested. Correspondingly, the defendant would lose without a trial and without the opportunity to put forward his defence no matter how strong it might be or how unfounded or weak the claim may be. 49. The claimant has advanced by way of prejudice that the lateness of the defence has caused him not to be able to prosecute his claim in a timely manner. As I mentioned above a substantial part of the delay in this case is due to the opposition to the application and the filing of the appeal by the claimant. In any event I do not consider that mere delay is prejudice that the Court should take into account. The position would of course be different if the delay causes some harm such as, for example, where documents or witnesses relevant to the proof of the claim are lost. It seems to me that when the respective disadvantages to the parties in granting or refusing the application are considered they clearly favour the grant of the extension. 50. With respect to merits of the defence, the claimant did not in his submissions raise any issue regarding the merits of the proposed defence. I believe the claimant was well advised to do so as it cannot be successfully contended that the defence does not disclose grounds for defending the claim and should be struck out or that the defendant has no realistic prospect of success so that the claimant should be granted summary judgment. Page 18 of 19
51. In giving effect to the overriding objective I must weigh the material considerations that favour the refusal of the application namely, from what I have said above, the failure to provide a good explanation for the breach as well as the failure to comply with the direction governing preaction protocols, against the prejudice to the defendant in not being able to serve the defence and where the administration of justice in this case would favour the grant of the extension. As I have mentioned before, the weight to be attached to the relevant factors is a matter for the Court in each case depending on the circumstances. In determining that aspect it is relevant to adopt a calibrated approach to the question of delay and the failure to provide a good explanation. The greater the delay the greater the weight to be attached to the absence of a good explanation. In this case the delay is not significant and the absence of a good explanation should not outweigh the considerations that favour the grant of the application. The failure to respond to the pre-action protocol does not redress the balance in favour of granting the application. It cannot reasonably be advanced that had the defendant responded to the letter, it would not have made any difference to the decision to litigate or to the progress of the matter. 52. The aim of the overriding objective is to deal with cases justly. Dealing with this case justly requires the grant of the extension. To refuse to do so in the circumstances of this case will be a wholly disproportionate response and unjust. The appeal is therefore dismissed with costs to be paid by the claimant to the defendant determined at two thirds of the costs allowed in the Court below. A. Mendonça, Justice of Appeal Page 19 of 19