We appear to have at last some clear guidance on the issue relating to extension of time. In a nut shell, parties should consider any such requests sensibly and bear in mind their duty in furthering the overriding objective, including allotting an appropriate share of the court’s resources to an individual case. This was from none other than Lord Justice Jackson himself. In his most recent judgment in Hallam Estates Ltd (1) Michael Stainer v Teresa Baker he confirmed that whilst he had recommended a “robust” approach by the judiciary by application of the new CPR rule 3.9 to “unjustified delays and breaches of orders”, it was no part of his recommendations that parties should refrain from agreeing reasonable extensions of time, which do not affect hearing dates or disrupt the proceedings in any way or that the courts should refuse to grant reasonable extensions of time in such circumstances.
The appeal in Hallam arose out of proceedings for detailed assessment of costs. The appellants who were the claimants in the main proceedings were ordered to pay the defendant’s costs following the dismissal of their claim for defamation on 15 August 2012. It was not until 18 April 2013 that a bill of costs and notice of commencement of detailed assessments proceedings were served. Points of dispute from the claimants were therefore due by 14 May 2013. The claimants’ solicitors requested a 21 day extension of time for service of these, citing reasons which Lord Justice Jackson thought were “sensible”. Unfortunately, even though the defendant had served the bill quite some time after judgment, they refused the claimants’ request.
The claimants were left with no choice but to make an application and did so on 14 May for an extension of time until 18 June for service of their points of dispute. A copy of the application was emailed to the defendant’s solicitors on the same day with the hard copy sent in the post. The application was formally issued by the SCCO on 15 May. The application was then dealt with ex parte by the costs judge on 16 May, even though a hearing had been requested, and an order granted in the claimants’ favour with liberty for either party to apply to set aside or vary the order.
The defendant wrote to the SCCO on 15 May and requested a default costs certificate, but this was ineffective as they had sent unsigned cheques. Subsequently, the defendant’s solicitors made an application to have the order set aside on the basis that the order dated 16 May had granted the claimants relief from sanctions. Under CPR rule 47.9 late service of points of dispute meant that the paying party could not be heard at detailed assessment proceedings without the court’s permission. This application was dealt with by the original costs judge on 31 May, who dismissed it on the grounds that the claimants’ application was for an extension of time and not relief from sanctions, as there was no sanction from which to seek relief. He went on to say that CPR rule 3.1 (2) (a) permitted a retrospective application to be made. The extension requested by the claimants was not unreasonable given the “significant” delay on the defendant’s part in commencing detailed assessment proceedings. It would not have been necessary for the claimants to make the application if the defendant had agreed to an extension.
The claimants then served their points of dispute on 17 June and the defendant appealed against the order dated 31 May and was successful. The reasons for this included an allegation of non-disclosure of material facts by the claimants (which was later declared unfounded), a finding that the application seeking the extension was out of time and that the claimants were therefore seeking relief and a conclusion that the costs judge had “erred in granting relief from sanctions to the claimants.” It was held that the points of dispute served by the claimants were therefore ineffective and a default costs certificate should be issued in the defendant’s favour.
Understandably, the claimants appealed and were successful before Lords Justice Jackson, Lewison and Christopher Clarke. Lord Justice Jackson, leading the court concluded that the claimants’ application had been made in time, on 14 May, although it was formally issued the next day, and that an application for an extension of time is “not an application for relief from sanctions.” It was a straightforward, in-time application under CPR rule 3.1(a) and did not invoke the principles concerning relief from sanctions laid down in the landmark judgment of Mitchell v News Group Newspapers Ltd . The costs judge had not “erred” but had properly exercised his case management discretion.
At present, any agreement to an extension of a deadline to which a sanction applies must be approved by the court pursuant to CPR rule 3.8 (3). However, in an effort to save costs and avoid unnecessary applications, CPR rule 3.8 is being amended and the new wording will come into to force on 5 June. This will enable parties to agree, in writing, to an extension of time of up to 28 days without an application to the court, provided this does not affect any hearing date. However, the parties may not make such an agreement, if the court has ordered that such an agreement cannot be made. Any such order would presumably be expressly stipulated in the directions, though parties would be well advised to ensure provision for agreement to a maximum 28 day extension is allowed for in any directions order to avoid any possible confusion.