We are 13 months on from the implementation of the Jackson recommendations and over those 13 months litigators have seen a robustness from the Courts which many will have never seen before. Statements of case have been struck out for failing to comply with a Court direction, offending parties have been prevented from calling witness evidence and costs have been disallowed.
The historic approach of the parties being able to agree between themselves on extensions of time to Court directions, without having to trouble the Court was post 1 April 2013, overruled by CPR Part 3.8(3) which states:-
“(3) Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time, and
(b) specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties.”
As a result of this rule and given the draconian and immediate sanctions that apply on default, where extensions of time are needed the parties have had little option but to make an application to Court. This has led to a significant drain on what is already stretched Court time.
As a result the Courts have had to find a solution which was first seen in the latter part of last year, when the Queen’s Bench High Court Masters indicated they would approve a general direction in the first order for directions which allowed the parties to agree a 28 day extension of time without having to involve the Court. The standard wording for such a direction was:-
“The parties may, by prior agreement, extend the time for compliance with a direction in this Order by up to 28 days and without the need for an application to the Court. Beyond that 28 day period, any agreed extensions of time must be submitted to the Court in writing including a brief explanation of the reasons, confirmation that it will not prejudice any hearing date, and with the draft Consent Order in Word format. The Court will then consider whether a formal application and hearing is necessary.”
This approach is to be formalised from 5 June 2014 with the introduction of subsection (4) to CPR 3.8. This amendment will allow the parties to extend time on directions by prior written agreement, as long as the extension does not put at risk ‘any hearing date’ and that the extension does not exceed a maximum of 28 days in all for any specific procedural step. It is understood for example, this means that if the parties agree an extension of 7 days for exchange of witness evidence, but realise that as they approach the 7th day they are not ready, they can only extend by a further 21 days maximum so as not to fall foul of this particular amendment.
Most importantly, it will not be necessary for the parties to file an agreed ‘buffer order’ with the Court, thereby avoiding applications even if by consent and draining court resources. Whether this is the first ‘softening’ of the Courts’ robust approach to case management remains to be seen. It is more likely a pragmatic response to an overwhelming number of applications for extensions and an attempt to reduce the impact they have had on already pressed Court time.