PRINCIPLES GOVERNING THE COURT’S DISCRETION TO EXTEND TIME

• Author: JEFFREY PINSLER
• Date: 01 December 1999
• Published date: 01 December 1999

Introduction

The purpose of this article is to examine the developments concerning the extension of time by the court pursuant to Order 3, rule 4(1) (RC), which provides:

The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these Rules or by any judgment, order or direction, to do any act in any proceedings.

The words ‘such terms as it thinks just’ signify that the court is to exercise its discretion in order to achieve justice in the circumstances of the case. The rule does not express the specific considerations which the court may take into account in determining whether it is just to extend time. In fact, no limit is placed by the rule on the factors which the court may consider in the exercise of its discretion. It has been left to the courts to determine the appropriate principles to be applied in achieving a ‘just’ decision.

Principles governing discretion

The primary concern of the courts has been to balance the priorities of compliance with the rules in the interest of the administration of justice and the denial of justice which may result if a defaulting party is refused an extension of time to do whatever is necessary to maintain his action or defence. These competing principles and their significance have been expressed as follows:

The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met. This principle is reflected in a series of rules giving the court a discretion to dismiss on failure to comply with a time limit: Ord 19, r 1, Ord 24, r 16(1), Ord 25, r 1(4) and (5), Ord 28, r 10(1) and Ord 34, r 2(2) are examples. This principle is also reflected in the court’s inherent jurisdiction to dismiss for want of prosecution.

The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his

opponent for which an award of costs cannot compensate. This principle is reflected in the general discretion to extend time conferred by Ord 3, r 5, a discretion to be exercised in accordance with the requirements of justice in the particular case. It is a principle also reflected in the liberal approach generally adopted in relation to the amendment of pleadings.1

Neither of these principles is absolute. If the first principle were rigidly enforced, procedural default would lead to dismissal of actions without any consideration of whether the plaintiff’s default had caused prejudice to the defendant. But the court’s practice has been to treat the existence of such prejudice as a crucial, and often a decisive, matter. If the second principal were followed without exception, a well-to-do plaintiff willing and able to meet orders for costs made against him could flout the rules with impunity, confident that he would suffer no penalty unless or until the defendant could demonstrate prejudice. This would circumscribe the very general discretion conferred by Order 3, rule 5, and would indeed involve a substantial rewriting of the rule.2

Justice in the traditional mould has been perceived in the context of the parties’ immediate interests in the litigation. If the application is rejected so that the applicant is not able to continue with his action or maintain his defence, or his case is seriously disadvantaged,3 then injustice may result because his substantive rights have been forfeited by his procedural error. On the other hand, the respondent would not suffer injustice unless the extension of time compromises his case or prejudices him.4 In this balancing exercise, justice is viewed in the ‘limited context’ of the consequences befalling the applicant and respondent. In short, this means that an application for extension of time, if necessary to the applicant’s case, should be allowed unless the extension would prejudice the respondent. If he would not suffer prejudice then injustice would only occur if the application is not allowed. This ‘limited context’ of justice excludes other factors which strive for recognition. One such factor is the effect of delay on other litigants whose cases may have to proceed more slowly as a result of the unnecessary use of court time. Another factor is the dignity and authority of the rules which may be treated with impunity if the defaulting party is confident that the most serious sanction

he would suffer is the payment of costs. As will be seen, the courts have not been consistent in their approach to the matter of extension.

The ‘limited context’ approach of justice certainly characterised the English courts from the end of the nineteenth century to the 1950s, as the following judicial pronouncements show. Bramwell LJ stated in Atwood v Chichester:5

When sitting in chambers I have often heard it argued that when irreparable mischief would be done by acceding to a tardy application, it being a departure from ordinary practice, the person who has failed to act within the proper time ought to be the sufferer, but that in any other cases, the objection of lateness ought not to be listened to and any injury caused by the delay may be compensated for by the payment of costs. This I think a correct view.

In Eaton v Storer, 6 Jessel MR ruled that where a party is out of time (in this case the plaintiff had not filed his reply within time) and, as a result, faces judgment (for example, on admissions in the pleadings) or dismissal of his action for want of prosecution,

the usual course is to give [him] time to take the next step upon his paying costs, which is a sufficient punishment, and will prevent the rules from becoming a dead letter. This course is not to be departed from unless there is some special circumstance such as excessive delay.

These principles also governed the approach of the local courts for much of this century,7 and may continue to do so. 8 However, there was a notable shift in direction in England (albeit temporary) in the 1960s. In Revici v Prentice Hall Inc,9 Lord Denning was prompted to say:

Nowadays we regard time very differently from the way they did in the nineteenth century. We insist on the rules as to time being observed. We have had occasion recently to dismiss many cases for want of prosecution when people have not kept to the rules as to time.10

Although Revici involved an application to extend time for service of a notice of appeal, these comments obviously have general application. Bramwell LJ”s pronouncement in Atwood11 (concerning an application to set aside a judgment in default) that the injury caused by delay may be compensated for by the payment of costs was regarded by Lord Denning as outdated authority.12 Edmund Davies LJ agreed and rejected the applicant’s argument (based on Atwood) that an application to extend time should always be allowed if the delay has not caused the opposing party ‘irreparable damage’.13 The learned judge also applied his comments to rules prescribing time-limits throughout the course of proceedings.14 The Court of Appeal in Revici ruled that it was a requirement for the party applying for an extension to offer a satisfactory explanation for the delay, the reasons suiting the nature and the length of the delay.

Revici is one of the first cases to challenge the narrow approach of the 19th century cases. Its general proposition is that the court may, in the absence of a satisfactory explanation for the delay, refuse to extend time even if the opponent could be compensated in costs and would not be prejudiced by such an extension. There is a recognition here that the term justice in the context of the rule governing the extension of time involves considerations beyond the ‘limited context’ just discussed.15 A few years before Revici, Lord Guest stated in the Privy Council case of Ratnam v Cumarasamy:16

The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time-table for the conduct of litigation.

As in Revici, this proposition appears to have been intended to apply to proceedings in general even though the case concerned an application to extend time for filing a document on appeal (in the case of Ratnam, the record of appeal). However, the scope of applicability of the ‘satisfactory explanation’ requirement has given rise to a disparity in judicial approach in both England and Singapore which has yet to be fully resolved. The

difficulty stems from Lord Guest’s statement about the ramifications of Bramwell LJ’s pronouncement in Atwood:17

Their lordships note that these observations were made in reference to a case where the application was to set aside a judgment by default, which is on a different basis from an application to extend the time for appealing. In the one case the litigant has had no trial at all; in the other he has had a trial and lost.

In the author’s view, this statement gives rise to at least three possible interpretations.18 Lord Guest may have been specifically concerned with the comparison between the situation in which judgment has been given against a party after adjudication of the merits (as when an appeal is filed) and the situation in which a judgment in default has been entered (in which case, there is no adjudication on the merits). Indeed, Atwood concerned a successful application to extend the time for setting aside a judgment in...