Everwarm Ltd v BN Rendering Ltd (Rev 2) [2019] EWHC 2078 (TCC) (30 July 2019)

Everwarm Ltd v BN Rendering Ltd (Rev 2) [2019] EWHC 2078 (TCC) (30 July 2019)

An in-time application for an extension of time to comply with an unless order is governed by CPR 3.1(2) and the overriding objective, not CPR 3.9. The court must consider the need for compliance with orders as part of the overriding objective, but the application is not to be treated as one for relief from sanctions. Since BN's application was made before the expiry of the time for compliance, the extension should be granted, especially as security was ultimately provided and no prejudice was caused to the claimant.

Citation
[2019] EWHC 2078 (TCC)
Parties
Claimant: Everwarm Limited; Defendant: BN Rendering Limited
Jurisdiction
England and Wales
Judgment Date
30 July 2019
Procedural Posture
Application for Extension of Time to Comply With Unless Order in Civil Proceedings / Interlocutory Application Prior to Trial
Outcome
Extension of time granted for compliance with unless order; Counterclaim not struck out.
Legal Topics
Extension of Time, Unless Orders, Relief From Sanctions, Security for Costs, Application of CPR 3.1 and CPR 3.9
Civil Procedure Extension of Time Unless Orders Relief From Sanctions Security for Costs Application of CPR 3.1 and CPR 3.9

Case Brief

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Parties

Everwarm Limited

Claimant

BN Rendering Limited

Defendant

Procedural Posture

Application for Extension of Time to Comply With Unless Order in Civil Proceedings / Interlocutory Application Prior to Trial

Legal Issues

  1. 1 Whether an in-time application for extension of time to comply with an unless order should be determined under CPR 3.1(2) or CPR 3.9
  2. 2 Whether the principles for relief from sanctions apply to in-time applications for extension of time in respect of unless orders

Ratio Decidendi

An in-time application for an extension of time to comply with an unless order is governed by CPR 3.1(2) and the overriding objective, not CPR 3.9. The court must consider the need for compliance with orders as part of the overriding objective, but the application is not to be treated as one for relief from sanctions. Since BN's application was made before the expiry of the time for compliance, the extension should be granted, especially as security was ultimately provided and no prejudice was caused to the claimant.

Court Disposition

Extension of time granted for compliance with unless order; Counterclaim not struck out.

Orders

  • Time for compliance with the unless order of O'Farrell J extended until 4pm on 18 July 2019.
  • Counterclaim to proceed as if never struck out.