Without notice applications and whether time should be extended to serve particulars of claim


The defendants applied to set aside an order extending time for service of the particulars of claim. The claimant had made its application without notice and the defendants argued that the application should have been made on notice and that the extension should not have been granted.

Nicol J held as follows:

(1) CPR r23.9(3) provides that, where an order is made after a without notice application, "the order must contain a statement of the right to make an application to set aside". That was not done here, but the judge noted that the defendants' solicitors were extremely experienced and so did not need to be told that they had this right (and in fact an application to set aside had been made).

(2) The judge queried whether there had been the necessary "extreme urgency" to justify a without notice application. In any event, it was not clear why informal notification was not given to the defendants' solicitors. PD23A para 4.2 provides that "Where an application notice should be served but there is not sufficient time to do so, informal notification of the application should be given unless the circumstances of the application require secrecy". In addition, the claimant breached the requirement under CPR r23.9(2) that a party who applies without notice must serve the application notice and any evidence in support on the defendants. For all these reasons, the order was set aside.

(3) The judge then considered afresh whether an extension of time should be granted. This was not an application for relief from sanctions and hence the claimant only had to persuade the court to exercise its discretion under CPR r3.1(2) (ie the court's general case management powers). Here the claim form had been issued and served in time, and the defendants had been shown draft particulars of claim. Weighing all the relevant factors together, Nicol J concluded that it would be just to grant the extension.