Judgment in an application for an extension of time to comply with an Unless Order was handed down yesterday by Her Honour Justice Andrews DBE in Philip John Eaglesham v. Ministry of Defence [2016] EWHC 3011 (QB). The Court had made an Unless Order on 5 July 2016 requiring the Defendant to comply with disclosure obligations set out in an order dated 9 September 2015. The Order required compliance by 4pm on 21 October 2016 or the Defence was to be struck out and judgment entered for the Claimant.

On 20 October 2016 the Defendant made an application seeking to extend the date for compliance. Interestingly, HHJ Andrews DBE noted that, although this was not technically an application for relief from sanctions, because filing the application before the deadline stopped the sanction from biting, it should still be treated as such. At the time of the hearing, the Defendant had still not complied with the Unless Order and requested a further two months in which to comply.

The Defendant claimed that they had not applied for an extension of time earlier because it was not apparent until “late in the day” that they would not be able to comply with the Unless Order. HHJ Andrews DBE stated that she could not accept this and stated that:

“A party who faces genuine difficulties in compliance with a court Order, particularly an Unless Order, should come back to the Court and explain the problems that it is facing as soon as they arise, if those problems are sufficiently serious to give rise to a real risk of non-compliance”.

Applying the Denton test, HHJ Andrews DBE took the view that there was no good reason for the breach (the Defendant conceded it was serious and significant) and when considering all the relevant factors of the case it was not appropriate for relief to be granted, because the Defendant had repeatedly failed to comply with Court Orders and to grant the application would necessitate losing the trial date, which could not be relisted within the coming year.   

Pete Blackmore

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Pete Blackmore

Head of Advocacy

Solicitor