Defendants run out of time for ordinary reasons — a lawyer instructed late, documents held in another province, a witness who cannot be found. The Rules accommodate that.
Order 1 Rule 15
The Court may, on terms, extend or abridge any time fixed by the Rules or by any judgement or order.
The Court may extend time before or after the time expires, and whether or not an application is made before the time expires.
Retrospective. The power operates after the time has run. Being out of time is not a bar to asking.
“On terms”. The Court will commonly require the defendant to pay the costs of the application, and may require the defence to be filed by a fixed date.
Both directions. The rule also permits abridgment — useful to a plaintiff who needs a matter dealt with urgently.
The boundaries of Rule 15
Rule 15 does not reach a period fixed by statute. That distinction decides several important questions:
- Limitation periods under the Frauds and Limitations Act 1988 — cannot be extended. See time limits.
- The six-month section 5 notice under the Claims By and Against the State Act 1996 — extendable, but under the Act, on sufficient cause shown, not under Rule 15. See late section 5 notices.
- Election petition time limits under the Organic Law on National and Local-level Government Elections — strict, and not a matter for the Rules.
There is also one express prohibition inside the Rules themselves: Order 4 Rule 13(2) — the Court shall not extend the period of two years for which an originating process is valid for service.
The period for a notice of intention to defend comes from Order 4 Rule 11, and the time for a defence from Order 8. Both are squarely within Rule 15, so both may be extended.
The cheapest route
Write to the plaintiff’s lawyers before the time expires, say how long you need and why, and ask them to agree. Most will. Record the agreement in writing.
Where the extension is substantial, or where the plaintiff may later dispute it, have the agreement made a consent order. That converts it into a time fixed by an order, which is enforceable and unambiguous.
An informal indulgence between lawyers does not, of itself, prevent default judgment being irregular or regular. If time matters, get the order.
Equally, a plaintiff who has agreed to an extension and then signs judgment can expect little sympathy — and the judgment is likely to be set aside with costs against them.
If you must apply
- A notice of motion seeking an extension to a specified date — not “such time as the Court thinks fit”. Cite Order 1 Rule 15 as the jurisdiction, as Rule 8 of the Motions (Amendment) Rules 2005 requires.
- An affidavit explaining why the time was not met, what has been done since, and when the defence can be filed.
- Where possible, the draft defence itself, exhibited. Nothing answers “this is a delaying tactic” more effectively than producing the document.
The length of the delay. A few days is one thing; several months another.
The explanation. An honest account of what happened, from someone with direct knowledge.
Prejudice to the plaintiff. Usually met by an order for costs.
The merits. A defendant with an arguable defence is in a far better position than one who simply wants more time.
Promptness. Applying as soon as the difficulty is apparent counts for a good deal; applying after judgment has been entered is a different and harder application.
Where else time can be adjusted
| Provision | Effect |
|---|---|
| O 1 r 7 | The Court may dispense with compliance with any of the requirements of the Rules, before or after the occasion for compliance arises |
| O 1 r 8 | Non-compliance does not render a proceeding void; the Court may set it aside, or allow amendments and make orders on terms |
| O 1 r 12 | Directions where the procedure is wanting or in doubt |
| O 4 r 31 | Directions convenient for the just, quick and cheap disposal of the proceedings |
| O 7 r 7(5) | After a jurisdiction motion is served, the plaintiff may take no step without leave — in practical terms, a freeze on your deadlines |
| National Court Act s 9 | The Rules apply except as directed by the National Court at any stage of the matter |
An extension is an indulgence, and indulgences are granted more readily to parties who ask. A defendant who says nothing until judgment is entered must then satisfy the harder set-aside test — explanation for the default, a defence on the merits, and promptness — usually on terms as to costs.
Sources
- National Court Rules 1983 — O 1 rr 7, 8, 12, 15; O 4 rr 11, 13, 31; O 7 r 7; O 8; O 12 Div 3; Motions (Amendment) Rules 2005 r 8
- National Court Act (Chapter 38) — s 9
- Frauds and Limitations Act 1988; Claims By and Against the State Act 1996 s 5
- Organic Law on National and Local-level Government Elections
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.