Kember v (1) Croydon Health Services NHS Trust (2) King’s College Hospital NHS Foundation Trust  EWHC 2297 (QB)
This article originally appeared in Issue 3 (November 2019).
Proceedings were issued on 6 June 2018 and served on 28 September 2018 following a limitation extension. The Defence was due to be served on 26 October 2018 but three extensions were agreed between the parties, with the final extension agreed until 4pm on 15 March 2019.
The Defence was not ready by 4pm on 15 March 2019. The Defendants contacted the Claimant’s solicitors to seek a further extension but the case handler was not in the office. Therefore at 5:34pm the Defendants’ solicitors faxed an application for an extension of time for 6 weeks to the court office. They had apparently been told by court staff that faxing the application was appropriate.
On 11 April 2019 the Defendants’ solicitors rang the court office to find out if the application had been received and when it was to be heard. They were told that it had not been received and that applications by fax were not accepted. Therefore the solicitor issued a further application for an extension of time and an application for relief from sanctions. The Defence was served on 23 April 2019.
The Master’s ruling
On 26 April 2019 Master Gidden heard the applications and rejected them. He found that the failure to serve a Defence was serious and significant and there was no good reason for the delay. He found that the application for an extension for time was made promptly but the application for relief from sanctions (which he found was the right application) was not made promptly. He also found that the Defendants had a relaxed attitude towards deadlines and the court should not send out the wrong message and indulge delay. The Defendants appealed this decision.
The main issue of wider relevance raised in the appeal was whether Master Gidden was right in finding that the correct application which should have been made on 15 March 2019 was an application for relief from sanctions. The Defendants argued that CPR 15.4 does not prescribe the effect and consequences of a failure to serve a Defence within time, nor was there any order in the litigation which stipulated a sanction in the event of failure in compliance. Therefore, there was no need to make an application for relief from sanctions. It was accepted, however, that the Defendants’ application for an extension of time made after expiry of the deadline would be determined according to the Denton principles in any event.
At  Lambert J agreed that the appropriate application was for an extension of time and not for relief from sanctions:
“given that neither CPR 15.4 nor any of the court’s orders in this litigation prescribed a sanction in the event of default… If no sanction is prescribed then the proper application is, in the context of this case, one for an extension of time adopting the three stage Denton test.”
Lambert went on to find that, despite the Master’s misdirection in law, it was not material and his decision to refuse the extension of time was not wrong. In the event she was incorrect, she considered the exercise of her discretion afresh and found that the appeal should be refused.
The decision serves as a useful restatement of when an application for relief from sanctions will be required.
It is easy to fall into the trap of assuming that any failure to meet a deadline requires an application for relief from sanctions. Indeed, as noted at  of the judgment, both the Defendants’ solicitors and counsel at the original hearing accepted that an application for relief from sanctions was required and so Master Gidden was not criticised for going wrong and finding that such an application was necessary. It was only at the appeal hearing that the Defendants sought to argue that such an application was not required.
The key is to consider whether a sanction is imposed by a rule, practice direction or order of which the applicant was in breach. As noted by Moore-Bick LJ in Altomart Limited v Salford Estates (No. 2) Ltd (Rev 1)  EWCA Civ 1408, which was cited in Kember:
“Most rules, practice directions and orders, however, do not provide specific sanctions for their breach, leaving it to the court to decide what, if any, consequences should follow. In my view rule 3.9 does not, therefore, apply to such case…”
Also of interest to readers may be Lambert J’s dismissal of the Defendants’ justifications for the delay. She found that the claim was not particularly complicated, as alleged by the Defendants, and that the fact that two Trusts were involved was not a good reason for the delays. She also noted that the Defence was only provided to the Trusts for approval 2 days before the deadline for service which demonstrated a “relaxed attitude” to rules and court orders. She also commented that the faxed application was not valid. She accepted that the solicitor had been told by court staff that faxing the application would be acceptable but “speaking with court staff is no substitute for reading the rules.”
Paul Reynolds was instructed by the Defendants in this case. He did not contribute to this article