No way out
If there was ever any doubt about the determination of judges to follow the Court of Appeal's decision in Mitchell v NGN  EWCA Civ 1537, cases since then have shown that they are at least taking heed of the warning delivered by the Master of the Rolls.
Hot on the heels of Durrant v Chief Constable of Avon and Somerset  EWCA Civ 1624 comes the decision of Mr Justice Turner in M A Lloyd & Sons Ltd v PPC International Ltd  EWHC 41 (QB).
The Claimant (C) sued the Defendant (D) for breach of a confidentiality agreement and passing off. C argued that D, a company incorporated in Brunei, was legally extinct. C made an application on the point and the hearing was fixed for 30 January 2014. On 11 October 2013, the Court gave directions for the filing of evidence for that hearing. C was to file its evidence and a skeleton by 25 October and D was to serve its evidence and skeleton in reply by 29 November 2013. Neither party complied with that Order. Instead, only D applied for an extension of time to comply with the Order, and the application was heard on 16 January 2014. C's solicitors did not attend the hearing, but simply sent a draft Consent Order to D's solicitors with a revised timetable for the hearing on 30 January. The new timetable was not agreed by D. The judge reserved his judgment to 17 January 2014 when C's Counsel attended and made submissions. However, an application had still not been issued by C for more time to comply with the Order of 11 October, though it was proposed that this be done.
Mr Justice Turner rejected C's late submissions, and held that C's proposed draft Consent Order was too little, too late. C's delay of 3 months was serious and could not be categorised as trivial. The judge considered that D's approach was unduly timid; D had not applied for a debarring order. On his own volition, Mr Justice Turner applied CPR rule 32.10 and debarred C from filing evidence at the trial in support of the argument that D was legally extinct. The judge pointed out that D did not need to apply for an extension of time for its evidence, as the Order was for D to serve evidence in reply and it had nothing to which it could reply.
The judge also made the comment, albeit obiter, that even where parties agree the terms of a Consent Order to vary a Court Order between them, that does not absolve them from the requirement to comply with that Order, unless the Court agrees.
This case is another timely reminder that if a party is unable to comply with an Order, you should apply for more time before the deadline expires. Just because your opponent may not seek a debarring Order does not preclude the Court from making one.