Before:

1.	LORD WOOLF, MR: I will ask Lord Justice May to give the first judgment.
2.	LORD JUSTICE MAY: This is an appeal by the claimant, Mr Chapple, from the order of His Honour Judge Conningsby QC, made in the Croydon County Court on 14 September 1999. The judge then allowed an appeal by the first defendant, Mr Williams, from an order of District Judge Margaret Brown made on 28 November 1998. District Judge Brown had dismissed Mr Williams' application to set aside a judgment in favour of the claimant for damages to be assessed and costs. The second defendant, Mr Emmett, has not appealed and does not feature before us today.
3.	The effect of the judge's order was to set aside the judgment in favour of the claimant on condition that Mr Williams paid £4,000 into court within 28 days. The judge gave permission to both sides to appeal. Before this court Mr Chapple says that the judge was wrong to set aside the judgment and that he should be reinstated. Mr Williams also had an appeal. His ground of appeal was that the judge was wrong to make the order conditional on the payment into court of the £4,000 and that it should have made an unconditional order. The basis of that contention was that Mr Williams was quite unable to pay the £4,000 into court and so the judge had made an order, apparently in his favour, with which it was impossible for him to comply.
4.	Mr Williams has not attended before us. The court has information from solicitors indicating that he no longer wishes to go ahead with his appeal. The letter says that he no longer wishes to go ahead with the appeal listed for today's date.
5.	The action began by a county court summons and particulars of claim dated 1 May 1997. By that process the claimant, Mr Chapple, claimed damages for what he alleged was the wrongful termination by the defendants, Mr Williams and Mr Emmett, of a fixed term contract of employment made in March 1996. Mr Chapple said that he was employed to be a showroom manager or salesmen of the defendants in their window and conservatory business for a minimum period from 25 March 1996 to 31 December 1996. He was to receive commission and other payments. He said that the defendants wrongfully terminated his employment on 25 October 1996 without notice. He claimed damages, an account and various quantified payments. The defendants' case was that it was not a fixed term employment but they were entitled to terminate his employment without notice and that there were good grounds for termination.
6.	The chronology of the procedural steps in this action is as follows. The county court summons having been issued in May 1997, there was something of a defence drafted by solicitors on 20 May 1997. On 10 June 1997 Mr Chapple applied for the filing and serving of a fully pleaded defence by the defendants within 7 days. On 1 October 1997 there was an "unless" order providing that:
	"UNLESS the Defendants do file and serve a fully pleaded Defence within 7 days of posting of this order, the holding Defence dated the 28th May 1997 be struck out and the Plaintiff be at liberty to enter judgment forthwith for damages and interest to be assessed."
7.	A defence and counterclaim was then filed and served on 6 October 1997. In February 1998 there was a request for further and better particulars of the amended defence and counterclaim. On 3 March 1998 Mr Chapple applied for the defendants to file and serve replies to that request within seven days. On 10 March the defendants were ordered to serve those replies. On 4 March there had been a change of solicitors by the defendants. On 6 April 1998 Mr Chapple applied for an "unless" order requiring the defendants to serve replies to the request for particulars. On 29 April 1998 that "unless" order was made requiring them to serve the particulars by 18 May 1998. The particulars were served one day before that date on 17 May 1998. Mr Chapple served a list of documents on 18 July 1998. On 2 September 1998 he applied for what was then the third "unless" order requiring the defendants to serve their lists of documents within seven days. That "unless" order was made on 15 September 1998 requiring the defendants to file their list of documents on or before 25 September 1998. The order was made in the absence of the defendants who did not appear. They failed to comply with that order and in consequence, on 28 September 1998, the plaintiff recovered judgment under the terms of the "unless" order against the defendants for damages to be assessed with costs.
8.	On 21 October 1998 the defendants applied for that judgment to be set aside on grounds which included that the application which resulted in the judgment was made out to a different address and gave them little or no time to attend court. On 24 November 1998 District Judge Margaret Brown dismissed the defendants' application to set aside judgment. It was from that order that Mr Williams appealed to the circuit judge. From his decision today's appeal comes before this court.
9.	The application to appeal to the circuit judge was not made promptly. The history of the matter, in outline, was that Mr Williams applied to the county court to set aside the judgment on 25 November 1998. For a month or two, through to about February 1999, he was erroneously pursuing that route of obtaining relief from the sanction which had been imposed. Meanwhile Mr Chapple was proceeding with his assessment of damages.
10.	On 9 March 1999 the application erroneously brought to set aside the judgment, was dismissed. On 22 April 1999 Mr Chapple served a statutory demand on Mr Williams. On 25 May 1999 Mr Williams applied for the statutory demand to be set aside. It was not until 4 June 1999 that Mr Williams' notice of appeal was forwarded to the court. The court office returned the papers because there was no court fee and his notice of appeal against the decision of the district judge to the circuit judge was not finally filed until 19 July 1999. It was accordingly something in the order of ten months after the order of District Judge Brown made in November 1998. Meanwhile Mr Williams' application to set aside the statutory demand was dismissed on 16 August 1999. On 14 September 1999 His Honour Judge Conningsby made the order which is the subject of the appeal.
11.	There is no written record of the reasons for District Judge Brown's decision on 28 September 1998, nor on 24 November 1998, but Judge Conningsby said that it was obvious that she thought that the history of the case was bad from the defendant's point of view and that there was no satisfactory excuse for his failing to comply with the third of the "unless" orders. It seems that Mr Williams did not file any evidence in support of his application to the district judge to set aside the judgment.
12.	Judge Conningsby observed that the appeal before him was a long way out of time and came before him as an application for permission to appeal out of time. There were outstanding orders for costs against Mr Williams of over £13,000. The reasons for the delay were, first, that Mr Williams was initially acting without legal advice and that he was wrongly told by the County Court office that he should apply to another district judge to reconsider District Brown's order. He then saw solicitors to apply for legal aid. This was at first refused, but was granted on appeal some time in July 1999. There was then some further delay by his solicitors who said that they were overworked.
13.	Mr Chapple submitted that he would be prejudiced if the judge extended time for appealing. He had by then had his damages assessed at £51,000. He had a judgment for £51,000 and costs orders in his favour of £13,000 or more which would increase if there was a successful appeal.
14.	As to the merits of the appeal, by the summer of 1998 the defendants were acting in person and had given Mr Emmett's address as their address for service. Mr Williams said that he did not himself see the notice for the hearing in September 1998. He accepted that this notice had gone to Mr Emmett's address, but he, Mr Williams, was not living there and unfortunately Mr Emmett was away. The judge did not regard this as satisfactory but, on balance, he accepted that Mr Emmett was away and that Mr Williams was not aware of the notice of the hearing.
15.	The judge considered the submission on behalf of Mr Chapple by reference to Part 3.9(1)(d) of the Civil Procedure Rules that Mr Williams had not given them an adequate explanation for not responding to the notice of the September 1998 hearing, nor to the "unless" order that was made. He should have realised that there would be communications from the court and that it was not good enough to allow Mr Emmett to go away without proper arrangements being made. Of this the judge said:
	"I think there is great force in all of that. The facts as they have emerged show Mr Williams was not doing enough to meet his obligations as a litigant in dealing with the litigation. He was in danger of being the author of his own misfortune."
16.	The judge then turned to the contention that Mr Williams had an arguable defence that the contract was not for a fixed period. He was inclined to think that some part of the defence was arguable and might have resulted in the claimant receiving substantially less than the amount of the judgment he had obtained. The judge then said:
17.	"In a situation like this the Court has three basic options, firstly to dismiss the appeal if on balance the delay and prejudice to the Claimant outweigh the merits of the Defence. The next course is to allow the appeal and give directions to proceed expeditiously and possibly some sanction as to costs. This is unrealistic where the Defendant is Legally Aided. The third course is to provide some protection for the Claimant when allowing the Claim to be revived by requiring the Defendant to bring money into Court. My view is that this is the kind of case where money ought to be brought into Court. There are already costs of £13,000. There is serious delay by the First Defendant. A series of "unless" orders in 1997 and 1998 and then 10 months delay inadequately explained in getting the appeal to Court.
18.	In principle this is a case where a significant sum of money should come into the Court. It is said by the Defendant 'I can't do that' because he is Legally Aided and he doesn't have any money so if I make that Order he is effectively debarred. I asked if he had a house but I was told he was in rented accommodation. The question I have to consider where he can't pay money is that the Defendant is procedurally at risk but is Legally Aided. I don't think there is any absolute rule that I can't order money into Court. It is obviously a matter to take into account but is not complete protection.
19.	I propose to give some cover for the Claimant for what seems to me to be a substantial part of the further costs if the appeal is allowed and the case is to be fully tried. It is said that these might be as much as £5,000. I think it appropriate that a sum of £4,000 be paid. Apart from the Legal Aid question I would be thinking of £25,000 - £30,000 so the amount I order is a very small proportion. I don't think I would be fair to the Claimant unless he is protected to the extent I have indicated."
20.	By his notice of appeal Mr Chapple says that the judge failed to have sufficient regard to the provision of Part 3.9(1) of the Civil Procedure Rules. In particular:
21.	(1) that the application for relief was not made promptly. This ground refers mainly to the delay in bringing the appeal from the district judge and not the delay in making the original application to the district judge;
22.	(2) the extent of Mr Williams' earlier failures to comply with the court orders which had resulted in "unless" orders. It is submitted that there was insufficient consideration of the fact that the order which took effect was the third "unless" order;
23.	(3) Mr Williams did not have a good explanation for failing to comply with the order of 15 September 1998, as the judge clearly held;
24.	(4) the judge did not pay sufficient regard to the effect on the claimant of the granting of relief of sanctions;
25.	(5) the judge did not sufficiently regard the overriding objective.
26.	By his notice of appeal, which, as I have said, is not pursued, Mr Williams said that the judge was wrong to impose a condition of a payment into court of £4,000 when that was a condition which Mr Williams was unable to meet. The effect, it was said, was to prevent Mr Williams from having any benefit from the relief which the judge decided he should have.
27.	The application to Judge Conningsby was for permission to appeal out of time against District Judge Brown's order. The time limit under the then County Court Rules was either 5 or 14 days. It is not necessary to decide whether Rule 13 or 37.6 applied since the delay was so great.
28.	The case for Mr Chapple was that the judge made no finding that the district judge had exercised her discretion wrongly. But Mr Hall-Smith accepts that in all probability this was not an appeal from a final order and that Judge Conningsby correctly proceeded on the basis of a rehearing. The submission, nevertheless, is by reference to Part 3.9 of the Civil Procedure Rules that the judge did not sufficiently consider the history of delay; that the application was insufficiently supported by evidence and such as there was the judge found unsatisfactory; and that he should not have considered the extent to which the defence to Mr Chapple's claim was arguable. This last submission is on the basis that the list of particular possible circumstances in CPR 3.9(1) does not include the merits of the case. This is in contrast with CPR Part 13, which deals with the setting aside and varying default judgments, where the rules direct the court to consider whether the defendant has a real prospect of successfully defending the claim.
29.	In the circumstances where Mr Williams has not appeared, and we have not heard detailed oral submissions from Mr Hall-Smith, it would not be right to reach a formal finding on that submission. But my initial view was to reject it. The court has to consider all the circumstances. The list in Part 3.9(1) of the CPR is not exhaustive and in an appropriate case the court can and should consider the merits as part of the circumstances.
30.	So far as the substantive merits of the case were concerned, Mr Williams' affidavit of 20 May 1999, much of which is concerned with his explanations for delay and for not dealing with the "unless" order which resulted in the judgment, merely says on the main issue that Mr Chapple's contract was not for a fixed term and that the letter of 23 March 1996 contains no term as to the length of the contract. The affidavit then proceeds to challenge some of the details of Mr Chapple's money claims.
31.	It was suggested in written submissions by counsel then instructed on behalf of Mr Williams on his appeal that the judge should not have set aside the judgment upon a condition which Mr Williams was unable to meet. Counsel's written submissions refer to authorities decided before the introduction of the Civil Procedure Rules. But the Civil Procedure Rules are a new procedural code with an overriding objective such that, speaking generally, matters of this kind are, in my view, to be decided on their own intrinsic merits in the light of the Civil Procedure Rules without extensive reference to previous authorities.
32.	In my judgment, the first question on Mr Chapple's appeal is whether the judge was plainly wrong to grant Mr Williams an extension of time in which to appeal. Matters arising under CPR Part 3.9 were relevant to that question, but his first decision had to be whether to extend time, not whether to grant relief from sanctions. Questions of extension of time are matters of discretion with which this court will not lightly interfere.
33.	Factors in favour of granting the extension existed, but were not very persuasive. They were, first, that Mr Williams said that he had not received the original notice of the hearing in September 1998; secondly, that there was something of an explanation for some of his delay - it seems to have been a combination of (a) muddle on his part when he was not represented, (b) initial wrong information from the court staff as to how he should proceed, and (c) delay in getting legal aid and subsequently getting on with the appeal; and, thirdly, Mr Williams had put forward a defence to the claim which could be right but was not obviously so.
34.	The factors against granting an extension of time were, in my view, of much greater weight. They included:
35.	(1) that the judgment was properly obtained.
36.	(2) that it was as a result of Mr Williams' failure to comply with a third "unless" order, so that there was a history of delay.
37.	(3) the fact that Mr Williams did not have notice of the September 1998 hearing was Mr Williams' own responsibility; the notice was properly served, but he did not make proper arrangements to receive it.
38.	(4) the extension of time required was very substantial, 10 months against a maximum possible period under the rules of 14 days, although on Mr Hall-Smith's present submissions it was probably five days.
39.	(5) the explanation for the delay was poor.
40.	(6) things had moved on since the judgment was obtained. Damages had been assessed and a statutory demand had been served and not set aside.
41.	(7) Mr Chapple had incurred substantial costs in the proper pursuit of his claim but was faced more than two years after he had issued the claim with having to go back more or less to the beginning all because of delays or other failings of Mr Williams. Much of those costs would be wasted, but Mr Chapple had little prospect of recovering them.
42.	In my judgment, the factors against granting the extension far outweigh those in favour of granting it.
43.	When the court considers how the overriding objective is to be achieved, there will rarely be any one factor which, by itself, determines where in a particular case justice lies. It is a question of balance and striking the balance is a matter for the discretion of those who have to exercise it.
44.	As Lord Woolf, MR said in the case of Biguzzi (paragraph [62]):
	"Judges have to be trusted to exercise the wide discretions which they have fairly and justly in all the circumstances...and this court should not interfere unless judges can be shown to have exercised their powers in some way which contravenes the relevant principles or are plainly wrong."
45.	Taking these matters into account, nevertheless, in my judgment in this case the factors against the granting of an extension of time, including those which would be relevant to the granting of the relief against the sanctions if the extension of time were granted, so outweighed those in favour of granting it, that I have reached the conclusion that the judge was wrong to grant it.
46.	The judge concentrated more on the question of relief against sanctions than the question of an extension of time. One particular reason why I consider that the extension of time ought not to have been granted is that the judge made his order conditional on the payment into court of £4,000. If it were necessary to do so, I would find difficulty in supporting this on the facts of this case. It seems to me that where judges are considering imposing conditions, it should, generally speaking, be reasonably possible for the person upon whom the condition is imposed to comply with it.
47.	This was a case where, for most of the relevant period and that period before Judge Conningsby, Mr Williams was legally aided. It was asserted on his behalf that there was no reasonable prospect of him paying £4,000 into court. It seems to me that there is nothing in the material before this court to indicate that that was other than correct.
48.	In those circumstances, although it is not necessary for today's decision to reach a concluded view on the subject, I have difficulty in thinking that the imposition of that condition in this case was correct.
49.	The consequence of that view is that if the judge perhaps ought not to have made that order, he was faced with the situation where he had to bite the bullet of either granting the application outright or refusing it outright. He would probably not have granted the application if he had not felt able, as I think he should not have felt able, to order the payment into court.
50.	I mention this only as a factor in reaching my conclusion that the extension of time ought not to have been granted. That was the balance of justice where the application for relief from sanctions would have failed. For these reasons I would allow Mr Chapple's appeal. The technical position is that Mr Williams' appeal does not arise for decision whether he was here or not.
51.	LORD JUSTICE WALLER: I agree.
52.	LORD WOOLF, MR: I also agree. Order: Appeal dismissed with costs. Respondents' appeal dismissed with costs.