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SC DG Petrol SRL & Ors v Vitol Broking Ltd [2013] EWHC 3920 (Comm) - 09/12/13


Application for an extension of time and relief from the sanction of strike out for failure to comply with orders for security for costs. A subsequent application for variation or revocation was not before the court.

Held: When considering an application for an extension of time in a case of any complexity, regard should be had to the amended CPR 3.9(1), which requires the court to consider all the circumstances of the case and to have regard to the overriding objective. Sayers v Clark Walker (a firm) [2002] EWCA Civ 645 still good law.

When considering an application for relief, the considerations that litigation be conducted efficiently and at proportionate cost and the need to enforce compliance with rules, practice directions and orders are given paramount importance. Relief will only be granted if the defaulting party shows good reason for non-trivial non-compliance, such as those arising from circumstances outside of their control. An application presupposes that the sanction has in principle been properly imposed. A party wishing to contend that the sanction was not appropriate must apply for variation or revocation of the order under CPR 3.1(7). Per Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537.

Whether circumstances beyond the case in hand justify relief is a matter for the court and not a tactical weapon in the arsenal of the non-defaulting party. The examples provided in Mitchell are illustrations of principle and not exhaustive. Obiter, the jurisdiction to extend time and grant relief should not involve the court being referred to other decisions on other facts.

Application refused. Although non-compliance was not trivial, the provision of security was justified, there was no good reason for default and the period for compliance originally imposed was not unreasonable.