Court of Appeal affirms Application to extend time made before deadline prevents sanctions taking effect.

In Pryor v The Commissioner of Police of the Metropolis [2026] EWCA Civ 650, the Court of Appeal has confirmed that an application to extend time to comply with a court order, made prior to the deadline for compliance, operates to prevent any sanction associated with non-compliance taking effect.

This is important because it means that the application is not one for relief from sanctions under CPR 3.9, but one to extend time under CPR 3.1.

In reaching this conclusion, the Court of Appeal has resolved the apparent tension between CPR 3.8 and Hallam Estates v Baker [2014] EWCA Civ 661.

CPR 3.8 provides:

• Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.

To a casual reader of the rules, this provision of the CPR can be read as suggesting that a party who has failed to comply with a rule, practice direction or court order must both apply and obtain relief from sanctions to prevent sanctions taking effect.  The rule does not differentiate between the timing of applications; it simply states that if a party has failed to comply with a rule (such as serve witness statements by a certain date) they must apply for and obtain relief.

In Pryor the Claimant argued that, if a party requires the permission of the Court to extend time to serve statements to a later date, it cannot be said that it has permission to rely upon them until such time as the Court determines its application.  If it does not have permission to rely on the statements, the reason is because it has failed to comply with a rule, PD or court order.  As a result, it must follow that CPR 3.8 applies, the sanction is in effect and CPR 3.9 is engaged.

However, in Hallam Estates, Jackson LJ held

“26. An application for an extension of time allowed to take any particular step in litigation is not an application for relief from sanctions, provided that the applicant files his application notice before expiry of the permitted time period. This is the case even if the court deals with that application after the expiry of the relevant period. The Court of Appeal established this principle in Robert v Momentum Services Ltd [2003] EWCA Civ 299; [2003] 1 WLR 1577: see in particular para 33. This still remains the case following the recent civil justice reforms. See Kaneria v Kaneria [2014] EWHC 1165 (Ch) at paras 31 to 34.

In Pryor the Court of Appeal has confirmed that Jackson LJ’s interpretation remains correct, notwithstanding that Court’s more recent judgments in Lufthansa Technik AG v Panasonic Avionics Corp [2023] EWCA Civ 1273 and Yesss (A) Electrical Ltd v Warran [2024] EWCA Civ 14.  The Court rejected the arguments that Birss LJ’s observations in both cases in 2024, to the effect that whether CPR 3.9 applied depend simply upon whether: (a) a rule, PD or order was breached; and (b) if any sanction applied, it applies automatically, cast doubt on Jackson LJ’s observations in Hallam Estates from 2014.

Pryor involved a failure, by the Defendant, to serve witness statements in time.  CPR 3.10 (as well as the directions order in the case) provides that a failure to do so precludes a party from calling oral evidence from those witnesses at trial.  On the day before the agreed, extended date for exchange, the Defendant made an application to extend time to serve statements.  That application remained unresolved until seven months later, which was one week before trial.  In the meantime, the Defendant served its statements about three months late.  However, when making the application to extend time, the Defendant had erroneously dated it the day after (and so, after the deadline) and failed to serve a sealed copy of the application on the Claimant.  At the hearing of the application, then, there was some confusion as to whether or not the application was ‘in time’.  The Defendant invited the judge, Mr David Pittaway KC (sitting as a High Court Judge), to consider the application as ‘in time’ but also informed the learned judge that, if he were to treat it as an application for relief from sanctions, the Defendant could not object.  The learned judge did so and refused to give relief.

The Defendant then objected and appealed to the Court to Appeal.  When doing so, he produced the sealed application notice, thereby removing any doubt as to the timing of the application.  The appeal proceeded on the basis that the application was in time, but with the Claimant arguing that, nevertheless, the timing of the application was irrelevant.  By failing to serve his statements by the deadline, the sanction contained in CPR 3.10 and the directions order automatically applied.  Relief was, therefore, required, and the timing of the application was just one of the factors to be weighed.

The Court of Appeal rejected that argument outright.

Accordingly, and notwithstanding the arguably clear words of CPR 3.8, the Court of Appeal affirmed that determining whether relief from sanction is required depends upon the timing of the application for relief.  In other words:

1. An application made after a deadline has passed is one for relief from sanctions and to be determined under CPR 3.9
2. An application made before a deadline has passed is one for an extension of time and to be determined under CPR 3.1

The case also serves as a warning to parties not to object to applications to extend time that will not endanger a Trial date.

In the case, the Defendant had failed to comply fully with his pre-action disclosure obligations, failed to provide all relevant disclosure in accordance with the Court time table (serving a comprehensively updated list around months late and a final list of documents a matter of weeks before trial), failed to serve witness statements in time, and asked questions of a medical expert months out of time.  Moreover, the Defendant had let his application for an extension of time to serve statements remain unresolved until a week before Trial (it only came on to be heard because the Claimant made his own application).  Initially, the Claimant had expressed neutrality to the Defendant’s application to extend time.  However, by the time the application came to be heard, the Claimant objected on the grounds that the Defendant had not conducted the litigation effectively and at proportionate cost.  Mr David Pitaway KC agreed; the Court of Appeal did not.  When determining issues of costs, the Court of Appeal concluded that the Claimant had acted unreasonably in changing his stance and objecting at the last minute.  He was ordered to pay all of the costs of the Appeal and adjourned trial and 75% of the costs below.

Practitioners may feel, then, that they should say nothing in response to any application to extend time and leave it to the Court to determine them.  They may also wonder when and how they can legitimately complain about an opposite parties’ repeated failure to comply with rules, PDs and Court orders.

Simon Brindle acted for the Claimant and was instructed by Ralli. 

The judgment is available here.