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Rayyan Al Iraq Company Ltd v Trans Victory Marine Inc, High Court, 23 August 2013

10 September 2013
The issues

Extensions of time – CPR 3.9 – particulars of claim served two days late – relieve from sanctions.

The facts

The claim was in respect of loss of and damage to cargo. The claim had been intimated and there had been discussions settling some of the claims. The parties had agreed extensions of time for the issue of proceedings before the claim form had to be issued. An acknowledgement of service was filed indicating an intention to defend but the particulars of claim were served two days after the 28 day period specified by CPR 58.5 (1) (c)) (Part 58 deals with rules and procedure in the commercial court).

The mistake was due to an oversight. The defendants refused to agree to the short extension of time and the claimant made an application which was opposed on the basis that in new proceedings the defendant would have the benefit of a limitation defence.

The decision

The new CPR Rule 3.9 replaced the check list by requirement to consider all the circumstances of the case so as to enable the court to deal justly with an application, bearing in mind the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce the compliance with rules, practice directions and orders. Although the check list had gone, the matters mentioned in it remained relevant. It had been suggested that the new rule was a reaction to the concern that relief from a sanction as being too readily granted, as had been a view that had been put forward by the Court of Appeal in Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd. This new approach did not mean that relief should be refused when it would be a disproportionate response and would give the defendants an unjustified windfall. The slight delay did not effect the administration for justice. The application had been made promptly. The failure was not intentional and an explanation had been given. The mistake was regrettable but not egregious. The case for an extension of time was clear and the attempt to exploit the defendants was regrettable.

Application granted.

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