Everwarm Ltd v BN Rendering Ltd (Rev 2)

Everwarm Ltd v BN Rendering Ltd (Rev 2)

An in-time application for an extension of time to comply with an unless order is to be determined under CPR 3.1(2) and the overriding objective, not as an application for relief from sanctions under CPR 3.9, even if the hearing occurs after the deadline has passed. The court should consider the importance of compliance with unless orders, the absence of prejudice, and the conduct of the applicant. In this case, BN Rendering made bona fide efforts to comply, ultimately provided the required security, and Everwarm suffered no prejudice. The extension of time was therefore granted.

Parties
Claimant: Everwarm Limited; Defendant: BN Rendering Limited
Jurisdiction
England and Wales
Judgment Date
30 July 2019
Procedural Posture
Civil / Application for Extension of Time to Comply With Unless Order
Outcome
Extension of time granted
Legal Topics
Extension of Time, Unless Orders, Relief From Sanctions, Security for Costs
Civil Procedure Extension of Time Unless Orders Relief From Sanctions Security for Costs

Case Brief

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Parties

Everwarm Limited

Claimant

BN Rendering Limited

Defendant

Procedural Posture

Civil / Application for Extension of Time to Comply With Unless Order

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 to be determined under CPR 3.1(2) and the overriding objective, not as an application for relief from sanctions under CPR 3.9, even if the hearing occurs after the deadline has passed. The court should consider the importance of compliance with unless orders, the absence of prejudice, and the conduct of the applicant. In this case, BN Rendering made bona fide efforts to comply, ultimately provided the required security, and Everwarm suffered no prejudice. The extension of time was therefore granted.

Court Disposition

Extension of time granted

Orders

  • Time for compliance with the unless order of O’Farrell J extended until 4pm on 18 July 2019
  • Counterclaim treated as never having been struck out