England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE COLLINS CBE

		Royal Courts of Justice Strand London, WC2
		11 February 2003

1. THE VICE CHANCELLOR: Dyson LJ will give the first judgment.
2. LORD JUSTICE DYSON: CPR 3.1(2)(a) permits the court to "extend or shorten the time for compliance with any rule, practice direction or court order." The question that arises on this appeal is how should this discretion be exercised in the case where the application is made before the time for compliance has expired. No guidance is given in the rule itself or the accompanying practice direction. In the present case, the claimant served her claim form within four months of issue as required by CPR 7.5. It was assumed that the claim form was served on or by 1 July 2001 (the latest time for service). Rule 7.4 requires the particulars of claim to be served on the defendant within 14 days after service of the claim form, and in any event, no later than the latest time for service of the claim form. On 13 June 2001, the claimant applied for an extension of time for service of the particulars of claim. On 3 October 2001, in the Central London County Court District Judge Wigfield extended the time until 17 October. The defendant appealed. On 3 July 2002, His Honour Judge Collins CBE allowed the appeal, and dismissed the action.

The facts.

3. The claimant seeks damages in respect of an accident that she suffered on 5 March 1998 during the course of her employment by Cross Channel Catering Company Limited as a Eurostar stewardess. She had been provided with a uniform which she was required to wear to carry out her duties. The uniform included shoes. Her pleaded case is set out in her particulars of claim, which includes the following:

"5. The accident was caused by the negligence of the defendants, their servants and/or agents.

Particulars.

5.1. The defendants provided the claimant with shoes which were unsafe. Without prejudice to the generality of that allegation it is specifically allege that the shoes were unsafe in that:

(a) their heels were too high and too narrow;

(b) they were thin-soled and flimsy.

(c) they were ill-fitting and loose for the claimant.

5.2. They failed to provide her with safe and appropriate footwear.

5.3. They failed as aforesaid despite knowing that the trains upon which the claimant was required to work did jolt and move passengers from side to side and "off balance."

5.4. They failed until after the claimant's accident to (a) provide shoes with a lower heel and (b) provide employees with vouchers with which they themselves could obtain their shoes.

5.5. They failed properly or at all to make a suitable and sufficient assessment of the risks of the claimant's work and/or failed to take appropriate steps to reduce such risks.

5.6. In the circumstances, they failed to devise, institute and maintain a safe system and place of work for the claimant, thereby exposing her to an unnecessary and foreseeable of injury."

4. She brought proceedings in the Employment Tribunal, alleging that she had suffered discrimination on the grounds of her disability, and that she had been constructively dismissed in July 1999. This claim was subsequently compromised. In October 2000, she instructed solicitors to pursue her personal injury claim. The defendants were first notified of her claim by the claimant's solicitor's letter dated 28 November 2000. In this letter it was said that the heel of one of the claimant's shoes snapped causing her to fall. It will be seen at once that this account of what happened differs from the pleaded account. The judge regarded this as a significant factor when he came to exercise his discretion to refuse to grant an extension of time.
5. A claim form was issued on 1 March 2001. It did not include the particulars of claim. By this time, the claimant's solicitors had discovered that Momentum Services Limited had assumed the liabilities of Cross Channel Catering Company Limited. Later that month, the claimant's solicitors wrote to the defendant's insurers suggesting that the claimant be examined by an independent orthopaedic surgeon, Mr Coull, as a joint expert. On 24 April, the defendant's solicitors rejected this suggestion, and proposed three alternative surgeons. They also asked for a copy of the particulars of claim or any draft particulars of claim "so that we can investigate the claim."
6. On 27 April, the claimant's solicitors replied saying that the particulars of claim had not yet been prepared, and asked the defendants to reconsider their rejection of Mr Coull, adding that they were now instructed that:

"the circumstances of the accident are not that the heel of one of our client's shoes snapped... but that the shoes were loose fitting and as such our client was unable to keep her balance."

7. On 13 June, the claimant asked for an extension of time for the service of the particulars of claim. The application was supported by a statement made by Mr Ian Barnett, the claimant's solicitor. This statement included the following:

"I had written to McLarens Toplis, on 23 March, telling them that I had not yet obtained medical evidence but nominating Mr J T Coull FRCS (an orthopaedic surgeon with a special interest in spinal injury) and asking for their confirmation that they had no objection to him being instructed. Unfortunately, there has not been any agreement as to an agreed orthopaedic expert and though I instructed Mr Coull to examine on 14 May he is not able to examine the claimant until 4 July. In consequence I will not obtain the medical report prior to 29 June and it will not be possible for me to effect service of all relevant documentation with the claim form. Mr Coull has however advised me that he should be able to produce his report within 14 days of the examination and in the circumstances I would hope to be in a position to serve all relevant documentation no later than 10 August."

8. It is clear, therefore, that the reason why the particulars of claim had not yet been served, and would not be served before the deadline of 1 July, was that Mr Barnett had not yet obtained the medical report on which the claimant intended to rely. Although he does not say so in terms either in the statement in support of the application or in his later statement dated 3 October, it seems clear that Mr Barnett believed that he could not, or should not, serve the particulars of claim unless it was accompanied by the medical report. This belief was plainly engendered by 16 PD paragraph 4.3.
9. Mr Coull examined the claimant on 1 July, and produced his report on 14 July. On 1 October, the defendant's solicitors received a copy of the particulars of claim and the Coull report.
10. The defendants opposed the application for an extension of time before the district judge. Their main point was that they had been prejudiced by the delay. Mr O'Brien, the defendant's solicitor, put it like this in his witness statement:

"4. This delay in notifying the claim has caused prejudice to the defendant in that the defendant has been hampered in its efforts to investigate the claim. This is because the claimant's employer Cross Channel Catering Company Limited has effectively ceased to exist, the business being taken over by the present defendant.

5. To date, I instructed and believe that searches made on behalf of the defendant have failed to locate relevant documents such as accident reports. Further, personnel have moved on, such that I have been unable to date to track down any witness who might be able to give a statement relating to the claimant's allegations. My enquiries in this respect continue.

6. A greater obstacle to my investigations, however, is that only until now (3 and a half years after the accident) have I had sight of a properly pleaded particulars of claim explaining exactly how the claimant says her accident occurred and precisely why she says that the defendant is at fault. The particulars of claim and medical report of Mr Coull were received at my offices on 1 October 2001, though it is not clear whether these have been served on the defendant. Indeed it is worth noting that the claimant appears to have fundamentally changed her account in that she said first of all that she fell because the heel snapped off her shoe (the shoes being part of her uniform supplied by the defendant) and now says that this did not happen but that her shoes were loose fitting and this caused her to fall."

11. The nub of the district judge's reasoning is to be found at paragraphs 15 to 17 of his judgment:

"15. Is this a proper case that this lady should have her extension or is this a case where the defendant should have the benefit of the doubt and the exercise of the court's discretion exercised against the claimant? The effect of denying the claimant's application would effectively mean that her claim would be at an end and that would be the end of her claim for damages.

16. I do not think this is a proper case to adopt the same viewpoint as one might in a case of want of prosecution. One must obviously look at the situation from both parties' point of view and I do not dismiss the points that are being made as to possible prejudice on the part of the defendant. But such prejudice I think may well have existed long before the solicitors were involved in this case, and therefore what was then the position probably still exists today. That should not prevent, in my judgment, a claimant being entitled to serve her particulars of claim if is proper to do.

17. I do believe it is proper to do so and I will extend the time. It would otherwise not be taking into account the overriding objective and one has to look at that from both points of view. But if at any stage in the future the defendant takes the view that this is a case for striking out for either want of prosecution or for some other reason, that is a matter entirely for them at that stage. But I think the claimant ought to be given an opportunity of serving her particulars of claim. We are not bound by the same restrictions as one is with the claim form, and therefore I will give permission for the particulars of claim to be served out of time or to extend the time."

12. The parties exchanged skeleton arguments for the purposes of the appeal. On behalf of the defendant, Mr Howarth identified three areas of what he described as "culpable delay", and set out the resulting prejudice that the defendant had suffered. He submitted if the district judge had followed the correct approach, he would have found that the claimant and/or her solicitors had been guilty of culpable delay, and the prejudice arising from the overall delay was such that the defendant's ability to defend the action was compromised, and he would have dismissed the application.
13. The judge said that no explanation had been given by Mr Barnett for the failure to serve the particulars of claim. He then referred to the practice direction supplementing Part 16 paragraph 4 and said:

"16. There is a certain ambiguity about this Practice Direction because at the time with which I am concerned the claimant was not relying on the evidence of a medical practitioner; she did not have any medical practitioner on whose evidence she could rely. Therefore, it seems to me, there was no objection to serving the particulars of claim without the report on a medical practitioner.

17. If I am wrong about that, then there was certainly no reason why the claimant should not have served her particulars of claim and asked for an extension of time for the purpose of serving the medical report. But what the claimant did was serve nothing. She asked for a general extension but then only gave details in support of her application for extension about the difficulties of getting a medical report. There is not now, and there never has been, any explanation whatsoever for the claimant's failure to serve particulars of claim within the time allowed".

14. He referred to the judgment of the district judge and at paragraph 21 said:

"With all respect to the district judge, it seems to me that there are two criticisms which can be made of the approach of his judgment. First, it is difficult, with respect to him, to see from his judgment, what the real reason for allowing the extension. Second, if he had been referred to a significant number of decisions emanating from the Court of Appeal starting with Bansal v Cheema March 2000, he might have thought it appropriate to judge the claimant's application in the light of a systematic analysis of the situation in accordance with rule 3.9 of the Civil Procedure Rules. In the circumstances it seems to me that I ought to exercise the discretion afresh."

15. Next the judge turned to the merits of the claim itself, and said at paragraph 22:

"I look at Rule 3.9, which is to apply by analogy even though strictly no sanction has been imposed and it starts by saying that the court will consider all the circumstances. In the Supreme Court Practice, is a note:

"Thus when considering whether to grant relief to a defendant the Court is entitled to consider the merits of the defence.""

16. The judge acknowledged correctly that in Chapple v Williams May LJ did not decide that regard could be had to the merits when dealing with an application for relief from sanction under CPR 3.9. But the judge said that May LJ's remarks were persuasive and that the court was entitled to look at the merits in a "proper" case.
17. He accepted the submission made on behalf of the claimant by Mr Brown that, since no witness statements had been exchanged, the court should be "extremely cautious before allowing a consideration of the merits to impact on its decision in a case of this kind." It was, however, right to have regard to what appeared to be the situation on the face of the papers.
18. He then referred to the conflicting accounts of the accident which I have already mentioned. He found it extraordinary that the shoes had been thrown away years ago. He summarised the position as regards the merits in this way at paragraph 34:

"Although I take, and give due weight to Mr Brown's point about the fact that statements of witnesses have not been disclosed, the way in which the claimant's case has been put so far on the facts, does not inspire a great deal of confidence in its prospects of success, particularly having regard to the fact that she waited two and a half years before instructing solicitors to pursue a claim for personal injuries."

19. Against that background the judge proceeded to go through the check list of matters identified in paragraph 3.9(1) which I should set out in full. It is in these terms:

"On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including --

(a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

(c) whether the failure to comply was intentional;

(d) whether there was a good explanation for the failure;

(e) the extent to which the party in default has complied with other rules, practice directions and court orders and any relevant pre-action protocol;

(f) whether the failure to comply was caused by the party or his legal representative;

(g) whether the trial date or the likely date can still be met if relief is granted;

(h) the effect which the failure to comply had on each party;

(i) the effect which the granting of relief would have on each party."

20. As regards the interests of the administration of justice the judge said that failure to comply with the rule (viz that service should have been effected by 1 July) was a matter of general importance. He noted that no trial date had been fixed and no trial abandoned. He was prepared to assume in the defendant's favour that the application had been made promptly. As to whether the "failure to comply" was intentional, the judge said that the claimant's solicitor had made a deliberate decision not to serve the particulars of the claim for reasons that were groundless. He could have served the particulars of claim before 1 July and applied for an extension of time for service of the medical report.
21. As regards the balance of prejudice, he acknowledged the obvious fact that if the application were allowed, the claimant would be able to proceed with her claim, but he added that he had already made some observations about the merits.
22. Turning to the position of the defendants, he said that since they had not yet managed to obtain any witnesses, and since the shoes were no longer in existence, they "are exposed to a claim which is very difficult for them to meet" It was "beside the point" that it would have been just as difficult for the defendants to meet this claim if the particulars of claim had been served together with the medical report on 1 March.
23. At paragraph 43, he continued:

"The point is that if the claimant does not comply with the rules and then asked the court's indulgence, these questions come into play. In my judgment, it would be right for me to follow the persuasive observations made by May LJ in Chapple v Williams and although the merits are not conclusive, the merits are a factor which, in my judgment, it is impossible to disregard. It is no answer to say: the defendants are no worse off than they would have been if the claimant had done everything properly on 1 March. The point is that she did not do everything on 1 March. The court's task is to balance all 3.9 factors and to produce a result which meets the demands of the overriding objective. The court is under an obligation to ensure, so far as possible, the parties are on an equal legal footing. I have already indicated, in my judgment to allow the case to proceed puts the defendants at an overall disadvantage, firstly, because of late notification of the claim, and secondly, because what the whole claim is about, namely the shoes are no longer in existence."

24. I interpolate that we were told that the shoes were thrown away several weeks after the date of the accident.
25. Finally, at paragraph 44 the judge said:

"It seems to me that the court is entitled to look at the overall period of delay. If there had been any explanation from the claimant as to the reasons for the delay until October 2000 before instructing solicitors one would have wanted to look at it and see what explanation was being put forward but none has. The other periods of delay identified have been explained, to some extent, by procedural misunderstandings and procedural mishaps of one kind or another, but the court cannot close its eyes in a flexible civil procedure system to the fact that this accident happened on 5th March 1998, and the claimant did not serve her particulars of claim, stating what she said had happened and what she was complaining about, against the defendants for until nearly three and a half years after the date of the accident. It seems to me that, this kind of delay, accompanied by a failure to comply with the rules is exactly the kind of mischief which the Civil Procedure Rules was designed to avoid among others."

Should the judge have exercised his discretion afresh?

26. It seems to me that this is the first question to be considered. CPR Rule 52.11(1) provides:

"Every appeal will be limited to a review of the decision of the lower court unless (a) a practice direction makes a different provision for a particular category of appeal, or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing."

27. The judge was plainly alive to the fact that, in the first instance, he had to review the decision of the district judge, and that he could not interfere with it unless the district judge had misdirected himself or reached a decision that was plainly wrong. He decided that the district judge had misdirected himself because his decision was flawed for want of reasons, and because he had failed to apply by analogy the check list provisions of CPR 3.9(1). As I shall explain, in my judgment, the judge was wrong in both respects.

Reasons.

28. I accept that there may be cases where it is appropriate for a judge on appeal from a district judge to conduct a rehearing on appeal on the grounds that the decision of the district judge is so inadequately reasoned that the losing party does not know why he or she lost. This is more likely to be in a case where the application is of some complexity, especially if the absence of reasons may conceal some material error of reasoning. It will usually be obvious why the district judge has reached the decision he has reached. It is often possible to criticise the decision of any judge for inadequacy of reasons. But if encouragement is given to rehearings on the grounds of shortcomings in reasons, the scheme of CPR 52.11(1) (that appeals are normally by way of review) will be subverted. District judges work under great pressure. In my view, provided that it is possible to determine why a district judge has made his or her decision, then there should be no need to conduct a rehearing, merely because the reasons could have been expressed more clearly or more fully. Applications for extension of time made prospectively under rule 3.1(2)(a) are usually simple and straightforward affairs. They require swift decisions with brief clear reasons.
29. In my judgment, the judge was wrong to hold that it was difficult to see what the real reason was for granting the extension of time in the present case. It seems to me that it is plain why the district judge allowed the application. He weighed the prejudice that would be caused to the claimant if the application and the action were dismissed against the prejudice to the defendants if he were to allow the application. In assessing the prejudice to the defendants in that event, he took into account the fact that the prejudice was suffered even before the claimant's solicitors came on to the scene. I shall come to discuss in a moment the question of whether the approach of the district judge was correct or not. But in my view, there can be no doubt why the district judge decided the way he did. I would therefore reject the first reason given by the judge for deciding to treat the appeal as a rehearing.

CPR 3.9 by analogy.

30. It is notable that Rule 3.1(2)(a) contains no list of criteria for the exercise of the discretion to grant an extension of time. In this respect it is to be contrasted with Rule 7.6, (application for extensions of time for service of the claim form after the end of the period specified by Rule 7.5 or court order), and Rule 3.9, (application for relief from sanctions). I have no doubt that this was quite deliberate. In Totty v Snowden [2001] EWCA Civ 1416 [2001] 4 All ER 577, this court had to consider the interrelationship between Rule 7.4(2) and Rule 3.1(2). At paragraph 46 of his judgment Chadwick LJ said:

"Third, there is no compelling reason of policy why the court should interpret r 7.4(2) and r 7.6 in order to cover a situation to which, on their terms, they are not addressed. As Kay LJ has pointed out, there is a clear rationale for the provisions of r 7.6 in relation to the service of the claim form itself. There is no comparable rationale in relation to the service of particulars of claim, in circumstances in which the claim form has itself been served. There is no reason why that situation should not be left to be dealt with, as a matter of discretion, in the exercise of the powers conferred by r 3.1(2)(a), having regard to the overriding objective. Once the claim form itself has been served, the defendant will know that there is a claim against him; and he will be in a position to invoke the assistance of the court if particulars of claim are not forthcoming within due time."

31. In Sayers v Clarke Walker (a firm) [2002] 1 WLR 3095, this court had to decide whether to grant an extension of time for appealing after the time allowed for appealing had expired. In giving the leading judgment, Brooke LJ said that, in a case of any complexity, the court should, in deciding whether to exercise its general discretion to extend time under rule 3.1(2)(a), take into account not only the overriding objective in rule 1.1, but also the check list in rule 3.9. That was a case involving allegations of professional negligence against a firm of accountants, and was one of some complexity.
32. Brooke LJ said this:

"19. In very many cases a judge will be able to decide whether to extend or shorten a period of time for complying with a rule, practice or direction without undue difficulty after considering the matters set out in CPR52PD, para 5.2. In more complex cases, of which this is undoubtedly one, a more sophisticated approach will be required.

...... ........

21. In my judgment, it is equally appropriate to have regard to the check-list in CPR r 3.9 when a court is considering an application for an extension of time for appealing in a case of any complexity. The reason for this is that the applicant has not complied with CPR r 52.4(2), and if the court is unwilling to grant him relief from his failure to comply through the extension of time he is seeking, the consequence will be that the order of the lower court will stand and he cannot appeal it. Even though this may not be a sanction expressly "imposed" by the rule, the consequence will be exactly the same as if it had been, and it would be far better for courts to follow the check-list for cases where sanctions are implied and not expressly imposed."

33. It is clear that Brooke LJ treated Sayers as a relief from sanctions case, or at least closely analogous to such a case. That is because the time for appealing had already expired when the application for an extension of time was made. I see no reason to import the rule 3.9(1) check lists by implication into Rule 3.1(2)(a) where an application for an extension of time is made before the expiry of the relevant time limit. There is a difference in principle between on the one hand seeking relief from a sanction imposed for failure to comply with a rule, practice direction or court order, where such failure has already occurred, and on the other hand seeking an extension of time for doing something required by a rule, practice direction or court order before the time for doing it has arrived. The latter cannot sensibly be regarded as, or even closely analogous to, a relief from sanctions case. If the draftsman of the rule had intended that the check list set out in rule 3.9(1) should be applied when the court is exercising its discretion under CPR 3.1(2)(a) in such a case, then he could and, in my judgment, would have said so. By not spelling out a check list in rule 3.1(2)(a), it seems to me that the draftsman was intending that the discretion should be exercised by simply having regard to the overriding objective of enabling the court to deal with cases justly including, so far as practicable, the matters set out in Rule 1.1(2).
34. It follows that, in my judgment, the judge was wrong to criticise the district judge for failing to apply the 3.9(1) check list. In the result the two reasons given by him for exercising his discretion afresh fail.

Other points.

35. Mr Howarth submits that the judge was also justified in conducting a rehearing on the grounds that the district judge took an unduly restrictive view of what was capable of amounting to prejudice to a defendant. He tells us that there is an inconsistency of approach amongst district judges. Some consider that the only prejudice to which they can have regard when exercising their powers under rule 3.1(2)(a) is prejudice that has occurred since the date when the particulars of claim should have been served. Others take the wider view that, once there has been a failure to serve in time, a defendant is entitled to complain of any prejudice whenever it was suffered.
36. In the present case, in assessing the prejudice to the defendant, the district judge made the point that the prejudice:

"may well have existed long before the solicitors were involved in this case and therefore what was then the position probably still exists today."

37. The judge said that this was "beside the point" and had regard to prejudice in the wider sense.
38. Mr Howarth seeks to supports the judge's approach. He relies by analogy on section 33 of the Limitation Act 1980, and makes the point that, if the claimant had issued the proceedings out of time, and had made an application under section 33 of that Act, any pre-issue prejudice would have been relevant. He has drawn our attention to the following passage in the speech of Lord Oliver in Donovan v Gwentoys Limited [1990 1 WLR 472 and 479 G:

"The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff's claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses' memories may fade, records may be lost or destroyed, opportunities for inspection and reports may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff's failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant."

39. I do not consider that observations made about prejudice in relation to proceedings issued after the expiry of the limitation period are of assistance in determining what prejudice is relevant for the purpose of deciding how to exercise the discretion conferred by rule 3.1(2)(a). It seems to me that the correct approach is to concentrate on prejudice that has been and/or will be caused to the defendant by the failure to serve the particulars of claim in time. Most applications under rule 3.2(1)(a) are for relatively short extensions of time for taking some step in the proceedings. The present case is a good example. It would be very surprising if, when dealing with such applications, district judges were required to embark on what could be the quite complex exercise of investigating what prejudice the defendant has suffered at earlier stages in the proceedings, or before proceedings have been issued at all. I accept that there may be circumstances in which the prejudice suffered as a result of the failure to act in time will be qualitatively affected by earlier prejudice. But as a general rule, I would hold that the focus of attention should be on the prejudice occasioned by the failure itself, and not on pre-existing prejudice. In my view, the judge was wrong to say that the fact that the defendant could point to no prejudice that would result from the grant of an extension of time itself was "beside the point."
40. It follows that, in my judgment, the approach of the district judge was correct, and the interference by the judge was not warranted.
41. The remaining point about which I need to make comment is in relation to the merits of the claim itself. The judge was considerably influenced in reaching his decision by his view that the claimant's case "does not inspire a great deal of confidence in its prospects of success."
42. I will make two points about this. First, it seems to me that it will rarely be appropriate to dismiss an application for an extension of time on the grounds that the claim is weak unless the court is able to conclude that an application to strike out the claim under rule 3.4(2)(a) or (b), or an application for summary judgment by the defendant under rule 24.2 would succeed. To refuse a prospective application for an extension of time on the grounds that the claim is weak, where neither the rule 3.4(2)(a) or (b) nor the rule 24.2 threshold is met would be a truly draconian step to take, and might well infringe a claimant's rights under Article 6 of the European Convention on Human Rights. In my judgment, if a defendant wishes to seek to persuade a court not to grant an extension of time for service of particulars of claim on the grounds that the claim is weak, then it would be desirable for him or her to issue an application to strike out under rule 3.4(2)(a) or (b) or for summary judgment under rule 24.2 to be heard at the same time as the application for an extension of time.
43. This brings me to the second point. If a defendant does wish to pray in aid the overall merits of a claim as a reason for refusing an extension of time, notice should be given to the claimant. This will enable the claimant to submit evidence directed to the point. In the present case, no notice was given beyond a passing reference in the grounds of appeal to the defendant being faced with a "stale claim which has prima facie significant weaknesses." In my view, this was not sufficient to put the claimant on notice that the weakness of her claim would be relied on as an independent reason why the decision of the district judge was wrong. In the result, there was no evidence on behalf of the claimant dealing with the merits of the claim.
44. Mr Howarth accepts that this is not a case where an application to strike out under rule 3.4(2) or for summary judgment could succeed. In my judgment, therefore, the judge was wrong to take into account the merits of the claim because (a) the defendant did not cross the threshold that in all but exceptional cases must be crossed, and (b) no notice was given to the claimant of the defendant's intention to take the point in any event.
45. For the reasons that I have given earlier, I consider that there were no grounds for the judge to interfere with the district judge's judgment, and I would allow this appeal.
46. LADY JUSTICE HALE: I agree.
47. VICE CHANCELLOR: I also agree.
ORDER: Appeal allowed. Order of His Honour Judge Collins to be discharged, and the order of the district judge restored. Costs here and below to be subject to a detailed assessment. Interim payment of £1,768.57 in respect of costs below and £7,000 in respect of the costs of the appeal.