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Robert v Momentum Services Ltd, Court of Appeal, 11 February 2003

18 February 2003
The issues

Extension of time – Particulars of Claim CPR Part 3.

The facts

The Claimant made an Application for an extension of time for service of the Particulars of Claim under CPR Part 3.1(ii) (a). The District Judge granted the extension. Judge Collins allowed the Appeal of the Defendant from that decision. The Claimant appealed to the Court of Appeal.

The decision

1. Part 3.1(ii)(a) contained no list of criteria for the exercise of discretion to grant an extension of time. This was in contrast with Part 7.6 (extension of time for serving a Claim Form) and Part 3.9 (relief from sanctions). (Part 3.1(ii)(a) entitles the Court to extend or shorten time for compliance with any Rule, Practice Direction or Court Order). There was no reason to import by implication into Rule 3.1(ii)(a) the checklist in Rule 3.9, because here the Application for an extension of time was made before the expiry of the time limit in question. It was not an Application for relief from sanctions. The Judge therefore had been wrong to criticise the District Judge for failing to apply the Part 3.9 checklist.

2. The Court had been told that District Judges were showing an inconsistency of approach in dealing with the issue of prejudice when exercising their powers under Rule 3.1(ii)(a). There was a difference of opinion as to whether the prejudice should be viewed as being since the date when the Statement of Claim should have been served or that once there had been a failure to serve, that the Defendant could complain of any prejudice whenever suffered. As a general rule, the focus of attention should be on the prejudice caused by the failure itself and not on pre-existing prejudice.

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