Extension of Time Agreements and Applications
This is one of the applications I dislike, if not dread. The application appears administratively innocuous. However, the legal implications of losing one can be severe. The basis of every Extension of Time application (‘EOT’) is the applicant’s or its solicitors’ failure to file or do something within the deadline set by the rules or directed by the court. It is typical for the lawyer’s fault to be a reason for the application. After all, the lawyers are the ones that conduct the case, not the client. In litigation parlance, it is called an ‘EOT’ application, pronounced ‘iyoti’ (‘i’ as in ‘in’). An EOT application is usually filed to extend time to file or serve a pleading, an affidavit in reply, a notice of appeal, a record of appeal, or an application for leave to appeal. For example, if we have to file and serve our notice of appeal within 14 days of the court’s decision but do so on the 15th day, we have done so out of time. But we do not, as a matter of course, have to file an EOT application. Whether we need to do so depends on how agreeable or reasonable our opposing lawyer is. An agreeable or reasonable opposing counsel will likely consent if there is no prejudice to his client and the request is valid. A disagreeable, pedantic and unreasonable opposing lawyer will object even at one day’s delay. (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 in writing without an order of the Court being made for that purpose. Order 3 rule 5(3), Rules of Court 2012 (RC12) Order 3 rule 5 RC12 allows parties to agree to extend time between themselves in writing instead of troubling the court with it. The rule is there to encourage litigants to be reasonable and not be pedantic in their dealings with each other. That litigants can extend time on their own accord is useful. They can dispense with the formalities of an application by an agreement. The conduct of an advocate and solicitor before the Court and in relation to other advocates and solicitors shall be characterised by candour, courtesy and fairness. Rule 18, Legal Profession (Practice and Etiquette) Rules 1978 (LPR78) The feeling existing between clients shall not be allowed to influence counsel in their conduct and demeanour towards each other or towards parties and their witnesses in the case. Rule 32, LPR78 Rules 18 and 32 LPR78 remind lawyers that even though they represent their client’s interests, they remain a part of the administration of justice, which takes priority over their client’s interests. It fortifies Order 3 rule 5 RC12. They should also have considerations of the court in mind when deciding whether to agree to extend time, not just their client’s interests. In practical terms, that means we lawyers should conduct ourselves and the case in a fashion that troubles the court as little as possible with administrative matters that can and should be settled between parties’ solicitors if they are reasonable. My attitude towards EOT applications is generally to give them. It is not in the best interest of the administration of justice to be troubled by such administrative matters unless the breach is so flagrant, unrepentant and recalcitrant, or the opposing counsel is repulsive or unethical. The rough guide I use to consider such requests is, firstly, is the EOT period requested reasonable? Secondly, does giving an EOT facilitate the administration of justice? Finally, would agreeing to an EOT prejudice my client’s case? If the EOT requested is a few days, generally, it’s no problem. I’d like to hear an acceptable reason if it is over a week. How acceptable that reason is depends on an important consideration: Is the requesting lawyer the reciprocating sort, or is he an asshole? If the one asking for an EOT is a friend or a familiar acquaintance, they are likely to get it. If I haven’t dealt with the lawyer before, it depends on how pleasant and reciprocating she is or is reputed to be. The more pleasant and cooperative a lawyer, the more obliging and generous I am with her. With assholes (an LQP), I go by the book or order strictly. I don’t understand these people. The more we object over matters ancillary or secondary to the primary matter, the more time and effort we waste. The more agreeable we can be with each other, the less anxiety we need to have over these deadlines. There is an unspoken rule where EOT is concerned. If I give you one, you owe me one if I ask for it later. That is why if I give you one and you refuse to return the favour, that immediately qualifies you as an asshole. On such occasions, when we are compelled to file an EOT application, a preliminary question is when the application should be filed. (2) The Court may extend any such period as referred to in paragraph (1) although the application for extension is not made until after the expiration of that period. Order 3 rule 5(2), RC12 Order 3 rule 5(2) RC12 implies a litigant is encouraged to file an EOT application before the deadline. The court, however, will hear the application even if it is filed after the deadline. That means the solicitors for the party out-of-time should request an EOT from the other party’s lawyer as soon as they know they require it. A formal application is warranted only if the other party’s lawyer declines to agree to an EOT. Whatever the case, an EOT application should be filed as soon as possible, either before or after the expiry of the deadline. (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 authorized by these Rules
