Jackson LJ gives guidance on agreeing extensions of time where the rules provide for a sanction

http://www.bailii.org/ew/cases/EWCA/Civ/2014/661.html

The claimants sought an extension of time to serve their points of dispute on an item in the defendant’s bill of costs. The rules provide a sanction where the points of dispute are served late. The defendant refused the extension and so the claimant applied to court, before the expiry of the deadline, for an extension. The extension was granted but the High Court reversed that decision and so an appeal was made to the Court of Appeal. This is the first decision by Jackson LJ, the author of the report which recommended the recent civil litigation reforms, on those reforms. Jackson LJ (with whom Lewison LJ and Clarke LJ agreed) held as follows:

  1. Although an agreement by the parties would have needed the court’s approval (pursuant to CPR r3.8(3)), because a sanction was provided for by the rules, that approval would have been a formality. He noted that the rules are being amended to allow parties to agree extensions of time of up to 28 days without needing the approval of the court, provided that a hearing date is not thereby put at risk (this change will come into force on 5 June 2014). 
  2. Legal representatives are not in breach of any duty to their client if they agree reasonable extensions of time which do not imperil future hearing dates or disrupt the conduct of the litigation. Instead, they are furthering the overriding objective and saving costs for the benefit of their client. Jackson LJ also said that it had been no part of his recommendations that parties should refrain from agreeing reasonable extensions of time.
  3. In any event, “An application for an extension of the time allowed to take any particular step in litigation is not an application for relief from sanctions, provided that the applicant files his application notice before expiry of the permitted time period. This is the case even if the court deals with that application after the expiry of the relevant period.” Since the application here was made before the end of the deadline, it was a straightforward application under rule 3.1(2)(a) and not an application for relief from sanctions. Hence the principles laid down in Mitchell did not apply.
  4. The addition of sub-paragraph 1.1(2)(f) into the overriding objective, requiring the enforcement of compliance with rules, practice directions and orders, had not been one of Jackson LJ’s recommendations and it did not require courts to refuse reasonable extensions of time.

Accordingly, an extension of time was granted by the Court of Appeal in this case.

COMMENT: This case gives welcome clarity not just to parties who are likely to breach a rule or court where a sanction will apply, but also to the “innocent” parties who must consider how to deal with a request for an extension of time. Together with the upcoming rule change, it should lessen the need for applications to court and thus relieve some of the increased burdens currently being placed on the courts’ time and resources. However, where a rule or court order providing for a sanction has already been breached (or an extension of time will disrupt the timetable), an application to court will still be necessary