Deputy Master Francis recently handed down judgment in Cavadore Ltd & Anor v Jawa & Anor, which concerned the Claimant’s applications for extensions of time and, alternatively, relief from sanctions, in connection with the requirement to pay an earlier costs order as the price for being permitted to serve the Defendant’s out of the jurisdiction.
Aside from relief from sanctions, the decision considers a relatively straightforward issue for which there is little authority: the circumstances in which a party is permitted to amend an application notice. In this case, the issue was of importance because, if the Claimant was granted permission to amend, it could avoid the consequences of having to apply for relief from sanctions, as opposed to a prospective application under r3.1(2)(a).
The Court held that the discretion was unfettered, but that it would not be appropriate to do so in this case where the Claimant’s in—time application was defective and would have failed in its previous form, where the application to amend was made considerably after the unless deadline expired. Permitting amendment in such a case would enable a party to avoid having to deal with the Denton criteria simply by putting in any application (even if doomed to failure) prior to the deadline, and then seeking to amend it later.
Barnaby Hope and Max Cole (on different dates) appeared for the Claimant, instructed by Tim Ashdown and Beatrice Bass of DMH Stallard LLP.
The full judgment can be found here