The High Court has confirmed that parties may agree to extend time for compliance with court directions by up to 28 days, without the need to apply to court.  This appears to be a move by the court to reduce the number of applications for extensions of time resulting from the Mitchell decision in November last year (see our Law-Now on this decision). It applies only to clinical negligence actions at present, but a decision will be taken shortly whether to extend it to all cases, a move that would be supported by most sensible litigators.

The Issue

In the Mitchell case, the court demonstrated its support of the Jackson reforms by setting out a new, more rigorous approach to the imposition of sanctions for missing court deadlines and in granting relief from such sanctions, with the aim of achieving a change in the “culture of delay and non-compliance”.  Unfortunately, this laudable aim appears to have encouraged more aggressive litigation, with parties being far less willing to agree extensions of time than previously, either because parties’ representatives are concerned that agreeing to an extension where there is a possibility that the court may refuse such extension could be seen as negligent, or purely as a means of tactical litigation to put pressure on an opponent.  Accordingly, there has been a marked increase in applications to the court for extensions of time.

A Partial Solution

The High Court has dealt with this issue in clinical negligence cases by including in the clinical negligence model directions a provision allowing parties to extend all directions by up to 28 days by agreement. Requests for longer agreed extensions of time may also be dealt with in the first instance by a simple email to the court explaining the need for such an extension and confirming the extension will not prejudice any hearing date. The court will then decide whether a formal application and hearing are necessary or grant the extension by way of consent order.

The Civil Procedure Rules Committee is currently discussing whether to incorporate this direction into the standard directions for all cases and a decision is expected soon.

Commentary

We believe strongly that such a direction should be incorporated across the board, in order to try and temper the increased combative nature of litigation that has resulted from the Mitchell decision. We expect, however, that even if such a direction is incorporated, the “Mitchell effect” will remain in the court’s strict approach to the imposition of sanctions or granting relief from sanctions, once the agreed extended period has passed.

Case Ref: Andrew Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537