A QUESTION OF TIME

• Published date: 01 December 1989
• Author: CHUA LEE MING
• Date: 01 December 1989

“Ah! The clock is always slow;

It is later than you think.”

— Robert W, Service,

Songs of a Sourdough

Extension of time by consent and Order 3, RSC

On 16 Feb 1989, the Court of Appeal held in Stadson Shipping & Trading Pte Ltd v Lembu Shipping Corp SA1 that where time for the service of defence was extended by 24 hours because of the 24-hour notice rule under the Law Society’s Etiquette Rules, Order 3 of the RSC would not apply in the computation of such time. In that case, the time for service of defence under the RSC expired on 11.5.87. At 9:45 am on 13.5.87 the plaintiffs’ solicitors, in conformity with the Law Society’s Etiquette Rules, sent the defendants’ solicitors a telex giving them 24 hours within which to serve their defence. On 14.5.87, at 10:35 am the plaintiffs, not having been served with any defence, entered judgment in default of defence. The defendants filed and served their defence later that same day.

One of the defendants’ arguments was that the default judgment was irregular as it was entered before the extended time for service of their defence had expired. In substance, the defendants’ submission was that the 24-hour extension should be construed as “one day” and that in reckoning it the day of the service of the notice could not be included. Reference was made to Order 3 of the RSC.

The relevant provisions of Order 3 are as follows:

“2. (1) Any period of time fixed by these Rules or by any judgment, order or direction for doing any act shall be reckoned in accordance with the following provisions of this Rule.

(2) Where the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date.”

The Court of Appeal ruled that 24 hours meant 24 numerical hours and not “1 day”. Order 3 was held to be inapplicable. It is respectfully submitted that this must be correct. In the first place, the 24-hour notice given by the Plaintiffs’ solicitors amounted to consent to extend the time for service of defence. The computation of the 24-hour period would then be a matter of interpretation of the agreement to extend time. As such it does not fall within the opening words of Order 3, Rule 2(1) which refer to periods of time “fixed by these

Rules or by any judgement, order or direction”. Neither can it be said that the parties in consenting to the extension of time must have had Order 3 in mind so that the applicability of Order 3 can be implied.

In Pike v Hayklan, an unreported decision of the English Court of Appeal delivered on 9.4.87,2 the time for service of defence was extended 14 days by consent. This 14-day period expired on 1 August. The defendant did not serve his defence by that date and judgment in default was entered. Order 3 Rule 3 of the English RSC excludes the month of August in “reckoning any period prescribed by these rules or by any order or direction for serving, filing or amending any pleading”. The defendant argued that the 14-day consent extension of time was a prescribed period within Order 3 Rule 3 so that the extended time did not expire until the end of August. The Court held in answer to this submission that Order 3 Rule 3 did not apply to the computation of the 14-day consent extension of time. Both Woolf LJ and Slade LJ took the view that the 14 days extension agreed between the parties cannot be said to be a “period prescribed by these rules” within the meaning of Order 3 Rule 3. Similarly, the defendant’s attempt to draw an analogy from Order 3 Rule 4 relating to the expiration of time on a Sunday, and the authorities relating to that rule, was rejected by both their Lordships. Slade LJ also rejected the defendant’s submission that in agreeing to the 14-day extension, the solicitors must be deemed to have made their agreement with knowledge of the relevant rules.

Pike v Hayklan was not cited before the Court of Appeal in Stadson Shipping but the Court’s ruling in the latter is clearly consistent with the decision in the former.

With Order 3 RSC out of the way, as a matter of interpretation it seems abundantly clear that in giving the 24-hour notice to serve the defence, the intention is to allow the defendant 24 numerical hours within which to do so. The prescribed period under the RSC having expired, the 24-hour notice is given as a matter of etiquette and with the intention that default judgement will be entered thereafter. The...