The case of Re Atrium Training Services Limited [2013] EWHC 1562 (Ch) is the latest judgment from the High Court which considers the new rules. The judge was faced with an application to extend time to comply with a court order for a massive disclosure exercise. This came against a background of a history of breaches of a timetable set by the court. The judge underlined the strictness of the new regime but tempered it with comments which are likely to be cited for a long time to come about the dates for compliance with some court orders not being ‘sensibly regarded as written in stone’. He granted the extension of time sought but made an Unless order for compliance.

The judge was clear that the application was for an extension of time made before the deadline for compliance with the court order had passed. It was therefore to be decided under the overriding objective and not as an application for relief of sanctions. The Court of Appeal set out the guidelines for applications for extensions of time in Robert v Momentum Services Ltd [2003] EWCA Civ 299. Since then the overriding objective has been amended to include the enforcement of and compliance with orders. Henderson J said that a court would examine an application for an extension more rigorously than it might have done before 1st April and he discouraged the easy assumption that an extension would be granted just because there was no prejudice to the other side.

However Henderson J went on to counterbalance this by saying that it was important not to go to the other extreme and to avoid encouraging unreasonable opposition to extensions which are applied for in time and which involve no significant prejudice to other parties. He said “in cases of that nature, considerations of cost and proportionality are highly relevant, and the wider interests of justice are likely to be better served by a sensible agreement, or a short unopposed hearing, than by the adoption of entrenched positions and the expenditure of much money and court time in preparing for and dealing with an application that could have been avoided.”

In fact he went even further saying: “although all court orders mean what they say, and must be complied with even if made by consent, there are some orders relating to the completion of specified stages in preparation for trial (such as disclosure, the exchange of witness statements, or a timetable for expert evidence) where there may be so many imponderables when the order is made that the date for compliance cannot sensibly be regarded as written in stone. Everything will always depend on the circumstances of the particular case, and the stage in proceedings when the order is made, but in many such cases it should be understood that there may be a need for reasonable extensions of time or other adjustments as the matter develops. It would, I think, be unfortunate if the new and salutary emphasis on compliance with orders were to lead to a situation where, in cases of the general type I have described, a reasonable request for an extension of time were to be rejected in the hope that the court might be persuaded to refuse any extension at all.”

It is undoubtedly better to be applying for an extension of time before a deadline expires than for relief from sanctions afterwards. The pragmatic approach of Henderson J will be particularly useful if you find yourself in that situation.