Safin v Badrig [2015] EWCA Civ 739
Safin is an important decision on the power of the Court to extend time for compliance with conditions attached the grant of relief from forfeiture. The Respondent was the estate of the late tenant of a residential flat. The estate of the deceased had failed to pay rent and service charge, and had committed other breaches of covenant under the lease. The deceased’s son was appointed the estate’s representative in the forfeiture proceedings. They were eventually settled by consent order. The consent order provided that time was of the essence for the conditions that had to be satisfied to secure relief. The order further provided that, upon failure to comply in time, the application for relief was dismissed. The Respondent failed to comply in time. The Respondent did ultimately comply with the conditions, but after the time provided for in the order. The question was whether he was entitled to relief, and whether the effect of the time of the essence provisions was to deprive him of his right to relief. The Court of Appeal concluded that, even though a consent order disposing of the substantive matters in dispute (and not merely a case management order), the Court had jurisdiction to vary consent orders and extend time under CPR r. 3.2 (coupled with the overriding objective under CPR 1.1). In so doing, the Court of Appeal applied the reasoning of Pannone v Aardvark Digital Limited [2011] 1 W.L.R. 2275, which in turn considered the decision of Neuberger J (as he then was) in Ropac Ltd v Inntrepreneur Pub Co Ltd [2001] L&TR 10. Accordingly, the Court had a real discretion as to whether to extend time, and the Judge below had correctly identified the existence of the discretion, and had correctly exercised it. Stephen Jourdan QC and Nathaniel Duckworth appeared for the Appellant. Jonathan Gaunt QC appeared for the Respondent.
The full transcript can be viewed here
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