SURVIVING MITCHELL A PRACTITIONER’S GUIDE 4: BE CAREFUL WHEN AGREEING VARIATIONS OF THE DIRECTIONS

Mediatelegal

One issue that has arisen consistently since the Mitchell decision in particular is whether the parties can agree to vary directions.  The answer is far from simple.

THE RULES

The rules are always a good place to start. CPR 2.11 states:-

Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.

(Rules 3.8 (sanctions have effect unless defaulting party obtains relief), 28.4 (variation of case management timetable – fast track) and 29.5 (variation of case management timetable – multi-track), provide for time limits that cannot be varied by agreement between the parties)”

 YOU MUST KNOW WHAT YOU CANNOT EXTEND

The first point to note is that there are some matters that cannot be varied.

  • CPR 3.8 (a sanction has effect and the party in default needs to obtain relief).
  • Certain parts of the case management timetable on both the Fast and Multi Track.

CPR 28.4: VARYING DIRECTIONS ON THE FAST TRACK

The rules are quite clear that certain key dates cannot be varied by agreement.

“Variation of case management timetable

28.4

(1) A party must apply to the court if he wishes to vary the date which the court has fixed for –

(a) the return of a pre-trial check list under rule 28.5;

(b) the trial; or

(c) the trial period.

(2) Any date set by the court or these Rules for doing any act may not be varied by the parties if the variation would make it necessary to vary any of the dates mentioned in paragraph (1).

(Rule 2.11 allows the parties to vary a date by written agreement except where the rules provide otherwise or the court orders otherwise)”

 CPR 29.5: VARYING DIRECTIONS ON THE MULTI TRACK

 The exceptions are slightly longer:

“Variation of case management timetable

29.5

(1) A party must apply to the court if he wishes to vary the date which the court has fixed for –

(a) a case management conference;

(b) a pre-trial review;

(c) the return of a pre-trial check list under rule 29.6;

(d) the trial; or

(e) the trial period.

(2) Any date set by the court or these Rules for doing any act may not be varied by the parties if the variation would make it necessary to vary any of the dates mentioned in paragraph (1).

(Rule 2.11 allows the parties to vary a date by written agreement except where the rules provide otherwise or the court orders otherwise)”

THE ESSENTIAL ELEMENTS

Every litigator must know both of these rules off by hear. In essence you cannot agree to vary the date for:

  • A pre-trial check list
  • The trial.
  • The trial period.
  • A case management conference.
  • A pre-trial review.

Further the parties cannot agree to vary other directions if the effect of this would be to vary any of the above dates.

THE MODEL DIRECTIONS

The problem that litigators face is the preamble to the directions orders in the Justice Model Directions. These state:

“Warning:  you must comply with the terms imposed upon you by this order otherwise your case is liable to be struck out or some other sanction imposed. If you cannot comply you are expected to make formal application to the court before any deadline imposed upon you expires.”

These could be interpreted as a situation where the court “otherwise orders” that the parties cannot vary the directions.

It is more likely that these are an exhortation and warning rather than a specific order.  However it would be useful if the position was made clear. It would hardly serve the purpose of saving costs and court resources if it is, indeed, necessary to apply to vary the time for the exchange of witness statements.

It would be useful to specifically incorporate into an order directions that:

The parties can agree to vary the directions in the timetable pursuant to CPR 2.11. However the parties attention is drawn to the provisions of CPR 28.4 [or 29.5]”

NOTE THE AGREEMENT HAS TO BE IN WRITING

One important element of the requirement that cannot be overlooked is the requirement that any agreement must be in writing. This is where the claimant came to grief in Thomas –v- The Home Office  [2006] EWCA Civ 1355. The claimant agreed an extension of time for service of the claim form. The action was struck out by the District Judge on the basis that the parties could not extend time for service. The Court of Appeal held that the parties could extend time. However that agreement had to be in writing. This agreement was not. Lord Justice Neuberger considered what was required by rule 2.11.

 “What is required by rule 2.11?

  1. It is accepted on behalf of the claimant that the requirement of r. 2.11 that there be “a written agreement between the parties” means that there must be some written document. However, there was a sharp division between the parties as to what type of document or documents would satisfy that requirement.
  2. Before deciding that point, it is, however, necessary to consider an anterior point made on behalf of the claimant, namely that once there has been one variation which is a “written agreement”, any subsequent variation will be valid even if made orally. This argument, as reformulated by Lloyd LJ in argument, is that r. 2.11 is concerned with stipulating that a variation to the time limit in r. 7.5 must be in writing, but that any subsequent variation, being a variation to the time limit agreed in the written variation, is not a variation of the time limit “specified by a rule”.
  3. Ingenious though that argument is, it must be rejected, in my view. First, as a matter of principle, it seems to me little short of ridiculous to conclude that r. 2.11 requires the first variation to be in a “written agreement”, but permits any further variation to be oral, or even to arise implicitly in some way. Secondly, ignoring r. 7.6 for the moment, it seems to me that where a claim form is served outside the time limit specified in r. 7.5, the court could only hold that the claim form had been validly served if satisfied that there had been a variation (or series of variations) of the time limit, and such variation or variations would all have to satisfy r. 2.11. Thirdly, as pointed out by Jacob LJ, the logic of the claimant’s argument in this connection is that, once there has been one written variation, there could be no further variations, because there would, on this argument, be no express right to vary the initial variation, and the natural effect of the rules I have been discussing is that the only variations (whether by the court or by the parties) to the time limits contained in r. 7.5 are those permitted expressly in the CPR.
  4. That brings me, then, to the question of what constitutes a “written agreement of the parties”. Clearly, it would encompass a single document signed by both parties. However, contrary to Mr Serr’s submissions, I see no grounds, either in principle or as a matter of language, for limiting it to a single document. I can see no reason why an exchange of letters between the two solicitors concerned, in which the extension of time is agreed, would not constitute a “written agreement”.
  5. An oral agreement which is then confirmed in writing by both sides appears to me also to be within the concept of a “written agreement”. The oral agreement itself would not, of course, be capable of being a written agreement. However, it seems to me that where, following the oral agreement, the two solicitors exchange letters confirming what they have agreed, the exchange of letters amounts to an agreement in writing that they have agreed (albeit orally) an extension of time: to my mind, it would, at best, be no more than a quibble to contend that an agreement in writing that the parties have agreed something orally does not constitute a “written agreement of the parties”. If the oral agreement, because of the very fact that it was oral, could not validly effect a variation, then it seems to me that there is no reason why it cannot be said that the time limit has been “varied by the written agreement of the parties” even though that written agreement was an agreement between the parties that they had orally agreed the variation.
  6. I think things get more difficult where the parties, having orally agreed a variation, each subsequently refer to what has been agreed in correspondence passing between them. An example, albeit of a slightly unusual nature, may be found in the facts of the present case. The claimant’s solicitors effectively confirmed the extension to the 1 April in their letter of 24 February 2005 (and if the defendant’s had replied in a letter confirming this extension, then there would, for the reasons I have just given, have been a written agreement in my view). However, what happened is that, almost four weeks later, the defendant’s solicitor wrote to the claimant’s solicitors in connection with a different matter, namely the expert evidence, and enclosed a letter to the expert in which the solicitor stated that an extension to 1 April 2005 had been agreed.
  7. With some hesitation, I have reached the conclusion that this was simply insufficient to amount to a “written agreement” as contemplated by r. 2.11. First, it seems to me to involve an impermissible stretching of the expression to cover the contents of a letter, whose purpose had nothing whatsoever to do with agreeing, but was merely communicating to a third party what had been orally agreed. Secondly, it appears to me undesirable that the question of whether or not there has been a valid agreement should turn on what a solicitor happens to write in subsequent correspondence which was not intended to bear on the question of agreement at all. To my mind, the concept of a “written agreement between the parties”, particularly in the context of the CPR, involves a document or exchange of documents which is intended to constitute the agreement or to confirm or record the agreement. Because one cannot envisage every possibility which might eventuate, I would not want this to be seen as being entirely prescriptive.
  8. Having said that, it seems to me clear that an oral agreement between two solicitors, subsequently recorded in a letter sent by one solicitor to the other but not replied to by the other, cannot possibly be said to constitute a “written agreement of the parties”. Similarly, an oral agreement between two solicitors, evidenced by an internal confirmatory note by one solicitor, or even by each of the solicitors, cannot constitute a written agreement, unless, of course, the internal notes are exchanged (or, for instance, one solicitor sends its internal note to the other, and the other in some way confirms in writing its relevant contents).”

ESTOPPEL ARGUMENT REJECTED

The Court rejected an argument that an oral agreement between solicitors led to an estoppel.

THE NEED FOR TOTAL CLARITY

Further the Court of Appeal made it clear that there was a need for total clarity in agreements. In that case the claimant sought a month’s extension. The claimant believed this was for a further month longer than the four month period for service.  The defendant believed it was from the date of the conversation. The district judge preferred the defendant’s account and the claim form was, therefore, served out of time.

Jacob L.J observed:

“I would only add two observations about good practice which, if it had been followed, would have avoided what happened here. First it is always desirable that agreements between solicitors be reduced to writing and – given the ease of communication by email – these days, hardly a burden. Second, when agreements (or court orders) about the date by which a thing is to be done are made, it is always better to specify that date precisely rather than by reference to a period such a week or a month. There is always room for misunderstandings or accidentally fixing a weekend or Bank Holiday if time periods are used. Old hands wisely use “On or before the [blank] day of [blank].”

SUMMARY

  • It is not totally clear that the parties can agree to extend time.
  • The parties cannot agree to vary certain key dates or where the variation would affect those key dates.
  • The agreement has to be in writing, by exchange of correspondence (which can include e-mails).
  • Total clarity as to what is being agreed is desirable, particularly for the party seeking an extension.

 RELATED POSTS

  • The Third deals with need to make applications in advance
  •  RELATED POSTS IN RELATION TO SANCTIONS AND AVOIDING PROBLEMS
  • All of the points in the “Jackson Survival Guide” remain apposite http://civillitigationbrief.wordpress.com/2013/08/23/litigation-after-jackson-a-10-point-survival-guide/
  • The doctrine of “safety first” is considered athttp://civillitigationbrief.wordpress.com/2013/06/26/extensions-of-time-after-jackson-safety-first/

 RELATED POSTS IN RELATION TO SANCTIONS AND AVOIDING PROBLEMS