A new 28 day buffer rule, in force from 5 June, allows  parties to agree up to 28 day time extensions without  having to seek the Court’s permission and will  provide considerable comfort to litigants concerned  about the zero tolerance approach brought in by the  Court of Appeal in Mitchell.

This development will no doubt trigger  a collective sigh of relief for all those  parties involved in court proceedings  having to comply with court timetables  for completing various steps such as  disclosure or witness statements. The  zero tolerance approach ushered in by  the decision of the Court of Appeal in  Mitchell has led litigants to understand  that even the slightest breach of a  deadline e.g. by as little as an hour, could  risk the party being sanctioned by the  Court.

This new liberty for parties to agree up  to a 28 day extension will mean that  where parties are “up against it” so to  speak, such that a deadline is about to  expire, they are now likely to obtain  their opponent’s consent to an extension  of time. Prior to this change, we have  seen opponents routinely resisting last  minute requests for extensions, taking  the view that it would be unwise to lose  the strategic advantage of the breaching  party possibly being sanctioned by the  Court. In contrast however, we have  also seen some evidence that the Courts  have little tolerance for opponents  unreasonably withholding consent to  extension requests and with a touch  of irony, that party being penalised in  costs instead of the breaching party.  So, it is gratifying to note that Mitchell has on occasion been turned on its  head where the Court spots that a  party is simply using Mitchell to gain a  tactical advantage. This welcome new  rule provides formal confirmation that  parties are now free to agree extensions  of up to 28 days.

The statutory instrument giving  effect to the change from 5 June is  the Civil Procedure (Amendment No.  5) Rules 2014. Prior to 5 June, parties  must adhere to the version of CPR  3.8 which provides that where a rule,  practice direction or court order  requires a party to do something  within a specified time and specifies  the consequences of failure to comply  (which is widely construed, e.g.  under CPR 32.10 the consequence of  failing to serve a witness statement  in time is that the witness may not  be called to give oral evidence at trial  unless the court gives permission),  the parties must seek the Court’s  permission to extend the deadline.  From 5 June, CPR 3.8 is amended such  that where the conditions of that  rule apply, the parties may, by prior  written agreement, unless the Court  orders otherwise, agree to extend  the deadline in question by up to a  maximum of 28 days, provided no  hearing date is jeopardised as a result.

A similar rule change was brought  in a couple of months ago in respect  of clinical negligence cases however  legal practitioners were not certain  whether the Civil Procedure Rules  Committee would consent to the  same liberty being introduced for  non-clinical negligence cases. It is  now clear that they have. Hopefully,  this will bring an end to the sudden  rise in the recent months following  the Mitchell decision, in parties  making formal court applications for  extensions of time on the back of the fear that if they failed to do so, they  might suffer a sanction for breaching  the original deadline set. This should  ease the burden on Courts dealing  with these applications and enable  trials and more important applications  to be listed more easily. All in all, this  is a sensible and much welcomed  development, which goes some way to  mitigating the zero tolerance litigation  landscape that the Mitchell decision  brought in. 

The full text of the statutory  instrument giving effect to this change  can be accessed at this web address: 

http://www.legislation.gov.uk/ uksi/2014/1233/contents/made