Uniform Rule 26

Notice of bar: how the five days run

5 min read

Rule 26 is the shortest fuse in a defended action. It is also the last warning anyone is obliged to give, and its effect on expiry is automatic — no application, no order, nothing for the barred party to oppose at the moment it happens.

What the rule provides

Where a party fails to deliver a pleading within the time allowed, the opposing party may deliver a notice calling on that party to deliver the pleading within five days. On failure to do so, the defaulting party is ipso facto barred from delivering it.

The rule does not require an application, and the bar does not depend on anyone taking a further step. It follows from the expiry of the period. What follows the bar does require a step: the plaintiff who has barred a defendant from pleading may then apply for judgment.

Counting the five days

Five court days, counted the ordinary way — the day the notice is delivered is not counted, and the fifth court day is. Weekends and public holidays are excluded, so a notice delivered on a Wednesday before a long weekend can run considerably further into the following week than five sleeps.

Rule 26 is one of only three places in the Uniform Rules carrying the 16 December to 15 January exclusion, and it is expressed to cover the time allowed for the delivery of any pleading for the purposes of that rule. A notice of bar delivered on 12 December therefore does not expire in the third week of December.

That exclusion cuts both ways. Practitioners who deliver a notice of bar in mid-December sometimes expect judgment in early January and find the period has barely started to run. Those who receive one should not assume the same and let it lapse in January.

What is left after the bar

A barred party is not without a remedy, but every route from here costs time and usually costs money.

• Apply for upliftment of the bar under Rule 27, on good cause shown. The application must explain the default and set out a bona fide defence; the cost of the application is ordinarily the price of the indulgence.
• Agree an extension with the other side. Rule 27(1) allows the parties to consent in writing, and many opponents will, once — but the consent must be obtained before the period expires to avoid the bar in the first place.
• Where judgment has already been taken, apply for rescission. That is a different and harder application than upliftment, and the period for it is short.

Avoiding it

The bar is almost always the second failure rather than the first. A plea was late, nobody noticed, and the notice arrives to a file that was not being watched. The practical defences against it are unglamorous: diarise the pleading period on the day the preceding step is taken rather than when the file next surfaces; diarise the notice of bar the day it arrives, as its own deadline, not as a note on the existing one; and treat any period of five days or fewer as needing a same-day response.

It is worth knowing which periods in a defended action are short enough to bar or to end the matter outright. Rule 26 gives five days. Rule 32 requires the affidavit opposing summary judgment five days before the hearing. Rule 35(7) allows the court, on failure to comply with an order to discover, to strike out the defence altogether. None of those leaves room for a week's delay.