In a judgment handed down yesterday, Lord Justice Jackson has taken the opportunity to clarify the effect of his reforms on extensions of time: Hallam Estates Ltd v Baker [2014] EWCA Civ 661. He referred to his recommendation that the court should be “less tolerant than hitherto of unjustified delays and breaches of orders” and that this change should be signalled by amendment of CPR 3.9 which governs applications for relief from sanctions. That, he said, remains his firm view. He welcomed the fact that the recommendation has been implemented, leading to a new and more disciplined approach to the conduct of civil litigation.

He added, however: “it was no part of my recommendations that parties should refrain from agreeing reasonable extensions of time, which neither imperil hearing dates nor otherwise disrupt the proceedings. The contrary is the case … Nor was it any part of my recommendations that the court should refuse to grant reasonable extensions of time in those circumstances.” In his view, such an approach is not required by new sub-paragraph (f) of the overriding objective, which refers to “enforcing compliance with rules, practice directions and orders” and (as Jackson LJ noted) was not one of his recommendations.

The judgment gives clear encouragement to parties to agree sensible extensions of time, referring with obvious approval to the new “buffer rule” that will allow parties to agree extensions of up to 28 days (see post). He commented that legal representatives are not in breach of any duty to their client when they agree a reasonable extension: “On the contrary, by avoiding the need for a contested application they are furthering the overriding objective and also saving costs for the benefit of their own client.”

The judgment also helpfully confirms (approving the decision in Kaneria v Kaneria [2014] EWHC 1165 (Ch) – see post) that an application for an extension of time is not an application for relief from sanctions, regardless of when the application is dealt with, so long as the application notice is filed before the deadline expires. The guidelines set down by the Court of Appeal inMitchell (see post) therefore do not apply. 

Background

The claimants were ordered to pay the defendant’s costs of a failed defamation claim. The defendant commenced detailed assessment of her bill of costs in the Senior Courts Costs Office (SCCO). The claimants’ points of dispute were due by 14 May 2013. On 8 May the claimants requested a 21 day extension of time, which the defendant refused.

On 14 May, the final day for service of the points of dispute, the claimants filed an application for an extension of time. The application was formally issued by the SCCO the following day. The SCCO granted the extension without a hearing, and dismissed the defendant’s application to set aside that order. The defendant appealed.

The High Court (His Honour Judge Richardson QC) allowed the defendant’s appeal and ordered that the claimants’ point of dispute were of no effect, including on the basis that the claimants required relief from sanctions and, the judge said, the costs judge had erred in granting relief.

Decision

The Court of Appeal (Jackson LJ, with whom Lewison and Clarke LJJ agreed) allowed the appeal, finding that the judge had been wrong to characterise the application as an application for relief from sanctions. The application had been made before the deadline expired. It was immaterial that the SCCO staff did not date stamp the application until the following day. (That is the effect of CPR 23.5, which provides in essence that an application is made when the application notice is received by the court.)

Accordingly, this was an in-time application and the principles concerning relief from sanctions as established in the Mitchell decision did not apply. The costs judge’s decision to grant the extension was a proper exercise of his case management discretion, and the judge had erred in reversing that decision.