When considering in-time applications for time extensions, is there a distinction between Unless Orders and ‘routine’ Court Orders? No, is the recent answer from the High Court.

Alexander Nissen QC, sitting as a Deputy High Court Judge, handed down judgment in Everwarm Limited v BN Rendering Limited [2019] EWHC 2078 (TCC) in which he considered the interplay between CPR 3.1 and 3.9. The defendant was already the subject of an unless order when it applied for a further extension of time to comply with an unless order to provide security for costs. Importantly, that application was made in time. This meant the sanction of the unless order had not yet ‘bitten’. The hearing of the application was held after the deadline for compliance, which did not affect the treatment of the application as having been made in time (Hallam Estates Ltd v Teresa Baker [2014] EWCA Civ 661).

The Judge considered a series of Court of Appeal authorities the question of whether an in-time application for time extension was the same as, or similar to, an application for relief from sanctions. He concluded that it was not the same, and neither is it closely analogous to an application for relief. If made before the sanction applied – regardless of how close to the deadline for compliance it was made – there was no sanction that had yet been applied.

The Judge held that it was immaterial whether the sanction was threatened via an Unless Order or a ‘routine’ Court Order. In support of this conclusion, the Judge noted the absence of any distinction between how Unless Orders were treated from other Orders within CPR Part 3.

Therefore the application fell to be decided in accordance with the principles within the overriding objective at CPR 1.1(2), rather than being considered an application for relief in line with CPR 3.9.

Via this decision, the High Court has confirmed that the correct test to be applied to in-time applications for time extensions is the overriding objective, not the considerations from Denton & Ors v TH White & Ors [2014] EWCA Civ 906. It clarifies that applying, pre-deadline, for an extension of time is not the same thing as applying for relief from sanctions.