England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENI 97/0192/E

(Sitting as a Deputy High Court Judge )

Royal Courts of Justice

The Strand

London WC2

Thursday 20th November, 1997

B e f o r e:

LORD JUSTICE HIRST

LORD JUSTICE MANTELL

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LINDA FINNEGAN

Appellant

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PARKSIDE HEALTH AUTHORITY

Respondent

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(Handed down Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR RB MAWREY QC and MR M TWOMEY (Instructed by Zelin & Zelin, London W2 1DY) appeared on behalf of the Appellant

MISS F NEALE (Instructed by Beachcroft Stanleys, London EC4A 1BN) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Thursday 20th November, 1997

JUDGMENT

LORD JUSTICE HIRST:

This appeal raises yet again the question as to what is the principle underlying the exercise of the court's discretion when an extension of time is sought under Order 3 rule 5.

The plaintiff, Mrs. Linda Finnegan, is claiming damages for personal injuries against the defendant The Parkside Health Authority. The claim arises out of her treatment at the defendant's hospital in February 1989, when she underwent an operation for dilation and curettage, and her claim is based on allegations of negligence by the defendants' servants or agents at the hospital following that operation. The letter before action was sent on 6 January 1992 and the writ issued on 26 February 1992, i.e. only two days prior to the expiry of the limitation period. The Statement of Claim was served on 1 March, and the Defence on 21 April; they were followed by further somewhat desultory interlocutory steps culminating on 13 January 1994 when a supplementary list of documents was served by the plaintiff's solicitors.

Thereafter the case went completely to sleep until 16 February 1996 when the plaintiff's solicitors served a notice of intention to proceed, to which the defendants responded with an application to strike out the claim for want of prosecution, which was heard by Master Prebble on 12 July 1996. 62 days later on 12 September 1996 the plaintiff served notice of appeal 57 days late. She then applied for leave to appeal out of time, and this application was heard and dismissed by His Honour Judge Taylor sitting as a Deputy High Court Judge in the Queen's Bench Division on 14 October 1996. It is against this refusal that the plaintiff now appeals with the leave of the full court.

There was before the judge an affidavit sworn by Mr. Patel, a member of the plaintiff's solicitor's firm, which gave some rather lame excuses for what had happened in August and the first part of September, but gave no explanation whatsoever as to why the Notice of Appeal had not been served within the five day time limit, or indeed for anything that had gone wrong prior to the end of July.

The judge considered three Court of Appeal authorities, namely Costellow v. Somerset County Council [1993] 1 AER 952, Revici v. Prentice Hall [1969] 1 WLR 157 and Savill v. Southend Health Authority [1995] 1 WLR 1254, to all of which I shall shortly refer in detail. He concluded that while in Costellow stress was laid on the importance of prejudice, he felt bound to follow the different approach adopted in Revici and Savill; and that consequently, in the absence of any explanation of the delay during the crucial period, there was no material before the court on which it could exercise its discretion in the plaintiff's favour, so that any question of prejudice, even if minimal or non-existent, was immaterial.

The two questions before the court are whether there is a conflict between the two lines of authority, and if so, which line we should follow.

Order 3 rule 5 provides as follows:-

"5.(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings.

(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

(3) The period within which a person is required by these rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.

(4) In this rule references to the Court shall be construed as including reference to the Court of Appeal, a single judge of that Court and the registrar of civil appeals."

In Costellow the plaintiff was seeking an extension of time for the service of his writ, claiming damages for personal injuries, which had been issued just within the three year limitation period but not served until after the expiry of the four month period allowed for service.

In the leading judgment with which Stuart-Smith and Simon Brown LJJ agreed Sir Thomas Bingham MR as he then was, stated as follows:-

"We are told that there is some uncertainty among practitioners and judges as to the appropriate practice in situations such as this. It is plainly desirable that we should give such guidance as we can.

As so often happens, this problem arises at the intersection of two principles, each in itself salutary. The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met. This principle is reflected in a series of rules giving the court a discretion to dismiss on failure to comply with a time limit: Ord 19,r.1, Ord 24, r.16(1), Ord 25, r.1(4) and (5), Ord 28,r.10(1) and Ord 34, r.2(2) are examples. This principle is also reflected in the court's inherent jurisdiction to dismiss for want of prosecution.

The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. This principle is reflected in the general discretion to extend time conferred by Ord 3,r.5, a discretion to be exercised in accordance with the requirements of justice in the particular case. It is a principle also reflected in the liberal approach generally adopted in relation to the amendment of pleadings.

Neither of these principles is absolute. If the first principle were rigidly enforced, procedural default would lead to dismissal of actions without any consideration of whether the plaintiff's default had caused prejudice to the defendant. But the court's practice has been to treat the existence of such prejudice as a crucial, and often a decisive, matter. If the second principle were followed without exception, a well-to-do plaintiff willing and able to meet orders for costs made against him could flout the rules with impunity, confident that he would suffer no penalty unless or until the defendant could demonstrate prejudice. This would circumscribe the very general discretion conferred by Ord 3, r.5, and would indeed involve a substantial rewriting of the rule.

The resolution of problems such as the present cannot in my view be governed by a single universally rule of thumb. A rigid, mechanistic approach is inappropriate. Where, as here, the defendant seeks to dismiss and the plaintiff seeks an extension of time, there can be no general rule that the plaintiff's application should be heard first, with dismissal of his action as an inevitable consequence if he fails to show a good reason for his procedural default. In the great mass of cases, it is appropriate for the court to hear both summonses together, since, in considering what justice requires, the court is concerned to do justice to both parties, the plaintiff as well as the defendant, and the case is best viewed in the round. In the present case, there was before the district judge no application by the plaintiff for extension, although there was before the judge. It is in my view of little or no significance whether the plaintiff makes such an application or not: if he does not, the court considering the defendant's application to dismiss will inevitably consider the plaintiff's position and, if the court refuses to dismiss, it has power to grant the plaintiff any necessary extension whether separate application is made or not.

Cases involving procedural abuse (such as Hytrac Conveyors Ltd. v. Conveyors International Ltd. [1982] 3 All ER 415, [1983] 1 WLR 44) or questionable tactics (such as Revici v. Prentice H all Inc. [1969] 1 All ER 772, [1969] 1 WLR 157) may call for special treatment. So, of course, will cases of contumelious and intentional default and cases where a default is repeated or persisted in after a peremptory order. But in the ordinary way, and in the absence of special circumstances, a court will not exercise its inherent jurisdiction to dismiss a plaintiff's action for want of prosecution unless the delay complained of after the issue of proceedings has caused at least a real risk or prejudice to the defendant. A similar approach should govern applications made under Ords 19, 24, 25, 28 and 34. The approach to applications under Ord 3, r.5 should not in most cases be very different. Save in special cases or exceptional circumstances, it can rarely be appropriate, on an overall assessment of what justice requires, to deny the plaintiff an extension (where the denial will stifle his action) because of a procedural default which, even if unjustifiable, has caused the defendant no prejudice for which he cannot be compensated by an award of costs. In short, an application under Ord 3, r.5 should ordinarily be granted where the overall justice of the case requires that the action be allowed to proceed."

In Revici the plaintiff in a libel action was seeking an extension of time for service of a notice of appeal against an order refusing him leave to serve one of the defendants out of the jurisdiction.

Lord Denning M.R. stated as follows:-

"There is a very general power in the court to extend the time, under the Rules of the Supreme Court ..., Ord. 3, r.5, whenever the court thinks it is just to do so. Mr. Colin Duncan [he was the Counsel for the plaintiff] has urged before us today that when the time is not excessive - and he says it is not in this case; it is only a month since the last extension - and when there is no injustice done to the other side (to the third defendants, in this case), then, on payment of costs, the time ought to be extended for the plaintiff to appeal.

Mr. Colin Duncan referred us to the old cases in the last century of Eaton v. Storer [1882] 22 Ch.D. 91, and Atwood v. Chichester [1878] 3 QBD 722, and urged that time does no matter as long as the costs are paid. Nowadays we regard time very differently from the way they did in the 19th century. We insist on the rules as to time being observed. We have had occasion recently to dismiss many cases for want of prosecution when people have not kept to the rules as to time. So here, although the time is not so very long, it is quite long enough. There was ample time for considering whether there should be an appeal or not. (I should imagine it was considered). Moreover (and this is important), not a single ground or excuse is put forward to explain the delay and why he did not appeal. The plaintiff had three and a half months in which to lodge his notice of appeal to the judge and he did not do so. I am quite content with the way in which the judge has exercised his discretion. I would dismiss the appeal and refuse to extend the time any more"

Edmund Davies L.J. said:

"The real question raised by this appeal is simply this: when a party has exceeded to a substantial degree the time limit set by the Rules of the Supreme Court within which an interlocutory step has to be taken, can it be said that he is entitled to have his time extended merely on undertaking to pay any costs occasioned by his delay, so that a judge who nevertheless refuses to extend his time must necessarily be regarded as having exercised his discretion wrongly?

The very first ground of the notice of appeal herein submits (in effect) that that question calls for an affirmative answer, certainly in cases where it is not shown that the other side have suffered irreparable damage as a result of the delay.

I disagree. On the contrary, the Rules of the Supreme Court are there to be observed; and if there is non-compliance (other than of a minimal kind), that is something which has to be explained away. Prima facie, if no excuse is offered, no indulgence should be granted ... That as it seems to me, is the position here. Substantial delay has occurred, and simply no explanation for it has even now, in my judgment, been proffered."

Also in the course of his judgment Edmund Davies LJ cited the Privy Council case of Ratnam v. Cumarasamy [1964] 3 AER 933 in which Lord Guest, giving the advice of the Board (Lord Hodson, himself and Lord Donovan) in a case where the plaintiff sought an extension of time for the filing of record of appeal, stated as follows in an appeal from the Supreme Court of Malaya:-

"The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation The only material before the Court of Appeal was the affidavit of the appellant. The grounds t here stated were that he did not instruct his solicitor until a day before the record of appeal was due to be lodged, and that his reason for this delay was that he hoped for a compromise. Their lordships are satisfied that the Court of Appeal were entitled to take the view that this did not constitute material on which they could exercise their discretion in favour of the appellant. In these circumstances, their lordships find it impossible to say that the discretion of the Court of Appeal was exercised on any wrong principle.

The principle for which the appellant's counsel contended was that the application should be granted unless to do otherwise would result in irreparable mischief. This was extracted from the judgment of Bramwell L.J. in Atwood v. Chichester (1878) 3 QBD 722 at p.723, when he said:

´When sitting at chambers I have often heard it argued that when irreparable mischief would be done by acceding to a tardy application, it being a departure from the ordinary practice, the person who has failed to act within the proper time ought to be the sufferer, but that in other cases the objection of lateness ought not to be listened to, and any injury caused by the delay may be compensated for by the payment of costs. This I think a correct view.'

Their lordships note that these observations were made in reference to a case where the application was to set aside a judgment by default, which is on a different basis from an application to extend the time for appealing. In the one case the litigant has had no trial at all; in the other he has had a trial and lost. Their lordships do not regard these observations as of general application.

Their lordships are satisfied that to allow this appeal would be substantially to interfere with the practice of the Board in regard to applications of this nature. The Board is not familiar with the practice in local courts, and their lordships are most unwilling to interfere with the exercise of their discretion on questions of procedure."

In Savill the plaintiff was seeking an extension of time of only five days for the service of his notice of appeal against the dismissal of his claim for want of prosecution.

Balcombe LJ, having considered the various authorities, including those already cited above, stated as follows:-

"I have to say that the authorities are not all entirely easy to reconcile. I prefer to go back to first principles and to the statement made by Lord Guest in the Ratnam case ... that in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. He went on to say, and it is worth repeating:

´If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a timetable for the conduct of litigation.'

Balcombe L.J. went on:

It seems to me that that statement applies as much to a minimal delay as it does to a substantial delay. Realistically, the court may be satisfied with an explanation for a minimal delay, even possibly forgetfulness, which it would not accept for substantial period of delay. Nevertheless, there must be some material on which the court can exercise its discretion. There was no such material before the judge. In my judgment, therefore, it cannot be said, as this court would have to say, that in exercising his discretion to refuse to extend the period of time for appeal in the case he was acting contrary to principle. It seems to me that he was acting in accordance with the principles laid down by Lord Guest. I would dismiss the appeal."

Mann L.J. said:

"I agree. The Rules of the Supreme Court are the rules for the conduct of litigation. They are there for the benefit of plaintiffs and the protection of the defendants. Here, the rule was not complied with. We are asked to exercise our discretion to waive the application of the rule. There is no material put before us on which we should grant a waiver. I do not see how one can exercise a discretion without material on which to consider it. If I went beyond that point, I would regard the way in which this litigation has been conducted as entirely antipathetic to the exercise of discretion. It took some three years to serve a statement of claim.

I have been troubled by the observations of Edmund Davies L.J. in Revici v. Prentice Hall Incorporated where he suggested that the minimality of delay might in itself result in the exercise of discretion. I am comforted to think that that observation was obiter and was not central to the decision where the delay was extremely long, and I wold most respectfully dissent from it. I do not think that the period of delay is of itself any ground for an exercise of discretion."

Six weeks or so after the decision in the present case the Court of Appeal gave judgment in Mortgage Corporation Ltd. v. Sandoes [1996] TLR 751, which was originally reported in the Times Newspaper on 27 December 1996. In that case the plaintiff was seeking an extension of time for the exchange of witness statements and expert's reports. The appeal was against the decision of Astill J, who had refused leave on the footing, as described by Millett LJ, that unless there were good reasons for the failure to comply with the rules or directions of the court the discretion to extend time would not be exercised.

Millett LJ, with whom Potter LJ and Sir Christopher Slade agreed, expressly rejected the argument based on Astill J's approach that the absence of good reason was always and in itself sufficient to justify the court in refusing to exercise its discretion, and held that the true position was that once a party was in default, it was for him to satisfy the court that despite his default, the discretion should nevertheless be exercised in his favour, for which purpose he could rely on any relevant circumstances.

There then followed a most important passage where the Court laid down general guidelines as follows:-

"The court was acutely aware of the growing jurisprudence in relation to the failure to observe procedural requirements. There was a need for clarification as to the likely approach of the court in the future to non-compliance with the requirements as to time contained in the rules or directions of the court. What his lordship said now went beyond the exchange of witness statements or expert reports: it was intended to be of general import.

Lord Woolf, Master of the Rolls and Sir Richard Scott, Vice-Chancellor, had approved the following guidance as to the future approach which litigants could expect the court to adopt to the failure to adhere to time limits contained in the rules or directions of the court:

1. Time requirements laid down by the rules and directions given by the court were not merely targets to be attempted; they were rules to be observed.

2. At the same time the overriding principle was that justice must be done.

3. Litigants were entitled to have their cases resolved with reasonable expedition. The non-compliance with time limits could cause prejudice to one or more of the parties to the litigation.

4. In addition the vacation or adjournment of the date of trial prejudiced other litigants and disrupted the administration of justice.

5. Extensions of time which involved the vacation or adjournment of trial dates should therefore be granted only as a last resort.

6. Where time limits had not been complied with the parties should cooperate in reaching an agreement as to new time limits which would not involve the date of trail being postponed.

7. If they reached such an agreement they could ordinarily expect the court to give effect to that agreement at the trial and it was not necessary to make a separate application solely for that purpose.

8. The court would not look with favour on a party who sought only to take tactical advantage from the failure of another party to comply with time limits.

9. In the absence of an agreement as to a new timetable, an application should be made promptly to the court for directions.

10. In considering whether to grant an extension of time to a party who was in default, the court would look at all the circumstances of the case including the considerations identified above."

This clearly demonstrates that this was another guideline case of general application. Indeed the full transcript shows that the passage just quoted appears under the heading ´ General': it also shows that Costellow was considered and applied by Millett L.J., who quoted the first four paragraphs from the passage cited above.

Finally in Douglas v. Royal Bank of Scotland and Blyth Liggins Solicitors, the court was considering two applications for extension of time for the service of statements of claim against the respective defendants, together with applications by them to dismiss the action for want of prosecution.

In one instance Mantell J (as he then was) had refused the application to dismiss and granted the plaintiff an extension of time, but in the other instance Sir Peter Webster sitting as a Deputy High Court Judge had refused the extension of time and dismissed the action.

Giving the leading judgment, with which Morritt and Phillips LJJ agreed, Leggatt LJ stated that Mantell J had regarded Costellow and Savill as being in conflict with each other and had preferred to follow Costellow and to take prejudice into account.

Leggatt LJ then sought to reconcile the two lines of authority as follows:-

"A distinction must be drawn between cases such as the present in which an extension of time is sought for delivery of a pleading and an application is made to strike out for want of prosecution, and cases in which the relief sought is an extension of time for service of a writ or for leave to appeal from a final order. In the latter cases the Court take a stricter attitude because a writ expires if it is not served in time, and if a party is intent on appealing he must have had the benefit of a trial. This in large measure explains the difference between Costellow and Savill. Savill falls into the stricter category, and with it fall Ratnam v. Cumarasamy [1965] 1 WLR 8, Revici v. Prentice Hall Inc. [1969] 1 WLR 157. ... The strictures in those cases about the need for ´some material' before a discretion can be exercised I can pass by."

It is common ground that this passage is strictly obiter, since in fact Leggatt LJ went on to hold that the case did not fall into the stricter category, so that it was appropriate to consider prejudice.

Most unfortunately, it seems clear that Mortgage Corporation cannot have been cited in Douglas, since there is no reference to it in the judgment, as surely there would have been had it been drawn to the Court of Appeal's attention.

On behalf of Mrs. Finnegan, Mr. Richard Mawrey QC submitted that, notwithstanding the attempted reconciliation in Douglas, there is still a conflict between the Costellow/Mortgage Corporation line of authority on the one hand, and the Revici/Savill line on the other; that the dicta in Douglas cannot be reconciled with Costellow and are inconsistent with it; and that the rationale of the proposed categorisation in Douglas does not withstand analysis from the standpoint of principle, and is, as Mr. Mawrey put it, a recipe for disaster since it opens the door to innumerable disputes on which side of the line any given case falls.

The line of division suggested in Douglas, he submitted, was inherently unsound; first, because a party falling within the strict category may not have had the benefit of any trial at all other than an interlocutory hearing; secondly because a party falling within the liberal category, such as an applicant for leave to serve a statement of claim or a defence out of time, would, if unsuccessful, have judgment entered against him, so that the eventual outcome would be just as final as the dismissal of an application for extension of time for service of a writ, or for leave to appeal from a final order.

Mr. Mawrey went on to submit that the Costellow/Mortgage Corporation line of authorities was preferable on a number of grounds:-

(i) Savill emasculated the discretion expressly conferred on the Court by Order 3 rule 5.

(ii) Both Costellow and Mortgage Corporation were guideline authorities intended to embrace the whole range of Order 3 rule 5 applications, without any hint of separate categories.

(iii) In a case like the present, where there are counter applications to strike out for want of prosecution and for leave to extend time, the former will, under well established authority, require both excusability and prejudice to be considered, whereas on the application for an extension, if Savill is right, lack of excusability is fatal, and the Court is precluded from considering prejudice. As Mr. Mawrey put it, laymen would find this contrast bizarre seeing that the bottom line is the same.

At the end of the day, the key criteria in the present case were guidelines 2 and 10 as laid down in the Mortgage Corporation case, showing that the over-riding principle was that justice should be done, and that in considering whether to grant an extension of time the Court would look at all the circumstances including the other considerations mentioned in that judgment.

On behalf of the Parkside Health Authority Miss Fiona Neale submitted that in Savill it was plainly not the intention of the Court of Appeal to depart from its previous decisions, and that the court regarded Costellow as a case in which the Court was trying to balance the two competing considerations, with Savill taking the balancing exercise one stage further by saying that the Court must decide at the outset whether there is any basis for the exercise of any discretion. To the extent that the cases are inconsistent, she argued, it is because Costellow made the question of prejudice paramount, whereas Savill asked what was the reason for the delay, and (only if the delay is explained) went on to consider how the Court should exercise its discretion. This approach, she submitted, was not inconsistent with Mortgage Corporation on a proper interpretation of the ten guidelines.

So far as Douglas was concerned, Miss Neale frankly acknowledged that she found it difficult to see where in the light of Leggatt LJ's analysis the line should be drawn, and she submitted that the correct distinction may depend on whether the order in question has finality (eg failure to serve a writ in time, or failure to lodge an appeal against a final decision), so that the action cannot proceed unless some reviving order is made; and that a striking out for want of prosecution was final seeing that the action is dead unless the Court revives it.

She then went on to submit that, if preference had to be given, Savill should prevail, since it acknowledged that the defaulting party needed to show prima facie that he merited an extension of time, rather than shifting the burden on to the defendant to establish prejudice.

Finally, so far as Costellow is concerned, she submitted that the last paragraph quoted above from the Master of the Rolls' judgment showed that he himself was recognising a variety of different categories.

In my judgment the starting point is Order 3 rule 5 itself, which explicitly confers the widest measure of discretion in applications for extension of time, and draws no distinction whatsoever between various classes of cases. Costellow seems to me fully in line with that philosophy, was expressed to be a guideline case, and, I would add, drew no rigid distinctions, since contrary to Miss Neale's argument I do not accept that the last paragraph in the Master of the Rolls judgment did any more than point out that in special cases or exceptional circumstances the court must, as is obvious, apply special treatment. For present purposes it is extremely important to note that the Master of the Rolls expressly disapproved of a rigid mechanistic approach, and rejected the contention that the application for an extension should be heard first, and that dismissal of the action is an inevitable result if the applicant fails to show good reason for his procedural default.

If there was any doubt as to the strength and breadth of guidance given by Costellow in the general application of Order 3 rule 5, that in my judgment was finally laid to rest by Mortgage Corporation , which follows precisely the same line of principle, and again expressly rejects the notion that the absence of a good reason is always and in itself sufficient to justify the Court in refusing to exercise its discretion; that case moreover lays down clear guidelines requiring the Court to look at all the circumstances, and to recognise the over-riding principle that justice must be done.

For my part I find it impossible to reconcile Savill, and indeed the judge's judgment in the present case, with those statements, since clearly prejudice forms part of the overall assessment, and is a factor which needs to be taken into account in deciding how justice is to be done.

So far as Retnam and Revici are concerned, it seems to me that, on a careful reading, they do not impose so very rigid a line of demarcation as that drawn by Savill: and in any event I think they have been overtaken by the two recent guideline cases in an area of the law which has developed significantly in recent years.

The attempted reconciliation in Douglas, albeit strictly obiter, is of course highly persuasive, but I am bound to say that I did find Mr. Mawrey's criticisms convincing, and it was noteworthy that Miss Neale sought to draw a different dividing line. I should add that I very much doubt whether the analysis there attempted would have been the same had Mortgage Corporation been cited.

For these, and the other reasons advanced by Mr. Mawrey, I am persuaded that the Costellow/Mortgage Corporation line of authority should prevail, and that the judge was in error here in entirely disregarding prejudice.

But of course that is not the end of the case, since each application must be judged on its own facts, and where, as here, there is a very considerable delay, with no explanation of the critical period, the Court will apply the guidelines laid down in Mortgage Corporation ,including guideline 1 stressing that the rules are to be observed. Consequently Mrs. Finnegan is by no means out of the wood, and even on an overall view, taking into account all relevant considerations including prejudice (if any), it by no means follows that she will succeed in gaining her extension.

However, for these reasons, I would allow the appeal on the point of principle, and remit the case to the Queen's Bench Division for re-consideration, bearing in mind that in the light of the Mortgage Corporation guidelines and of this judgment each side may well wish to advance further evidence on the relevant issues.

LORD JUSTICE MANTELL: I agree.

ORDER: Appeal allowed with costs. Case remitted to the Queen's Bench Division for reconsideration.