SURVIVING MITCHELL 5: CAN YOU EVEN AGREE EXTENSIONS OF TIME?

Mediatelegal

The earlier post on extensions of time gained a lot of attention and numerous issues were raised at twitter.  This is such a fast moving area that a case, reported yesterday, deals with some of the issues raised.  I wanted to look at some of the issues raised as these are crucial to the way in which litigation is conducted.

THE DECISION IN MA LLOYD & SONS LTD –V- PPC INTERNATIONAL LTD

This decision of Mr Justice Turner was discussed in detail yesterday. Here I want to look at just one aspect of it.  The claimant had failed to comply with directions to file witness statements. The claimant suggested that there be a consent order extending the time for filing witness statements.

The judge observed:

“25. The fact that, at the eleventh hour, the claimant’s solicitors have volunteered a proposed consent order extending the time for service of witness statements falls far short of salvaging their position.

26. CPR 3.8(3) provides:

“Where a rule, practice direction or court order-

(a) requires a party to do something within a specified time; and

(b) specifies the consequences of failure to comply,

the time for doing the act in question may not be extended by agreement between the parties

27. CPR 32.10 specifies the consequences of failure to serve a witness statement. It follows that even if the parties had purported to reach a concluded agreement on an extension of time this would not have been effective unless the court were to be persuaded formally to endorse it. This court is under a duty under CPR 1.4 not simply to adjudicate passively upon the applications of the parties or to rubber stamp their reciprocal procedural indulgences but actively to manage cases. To this end, the court has power under CPR 3.3 to make orders of its own initiative.” (emphasis added).

SO CPR 3.8(3) OVERRIDES CPR 2.11

The logical consequence of this is that CPR 3.8(3) overrides CPR 2.11. In all those rules where these is a specific sanction imposed by the rules the parties cannot agree to vary the timetable.

EXAMPLES OF SANCTIONS IN THE RULE

These were considered in an earlier post on applying for relief from sanctions

 DISCLOSURE

CPR 31.21 states:

A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission”.

WITNESS EVIDENCE

CPR 32.10 is clear

If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission”

EXPERT EVIDENCE

An earlier  looked at the decision in Dass –v- Dass and the judge’s view that 35.13 meant that a party who did not file expert evidence  in time required permission of the court and that CPR 3.9 was the appropriate criteria, the defaulting party required relief from sanctions. This despite the fact that there is no express reference to time in 35.13 itself which states:

“A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission”.

THE PRACTICE DIRECTION ON VARYING DIRECTIONS

Several people on twitter have pointed to the Practice Direction at 29PD.6 which deals with variation of directions. In particular 6.5.

6.5  Where the parties agree about changes they wish made to the directions given:

(1) If rule 2.11 (variation by agreement of a date set by the court for doing any act other than those stated in the note to that rule) or rule 31.5, 31.10(8) or 31.13 (agreements about disclosure) applies the parties need not file the written agreement.

(2)(a) In any other case the parties must apply for an order by consent.

(b) The parties must file a draft of the order sought and an agreed statement of the reasons why the variation is sought.

(c) The court may make an order in the agreed terms or in other terms without a hearing, but it may direct that a hearing is to be listed.”

NOTE THE WORD “IF”

The difficulty here is that 6.5.(1) starts with the word “if”. Further it does not apply to disclosure. To agree an extension you should be absolutely certain you can use CPR 2.11. There appear to be many cases when you cannot.

WHAT IS TO BE DONE?

I had the task recently of drawing up a complex set of directions after a hearing to take a case forward to a set trial date.  The judge was happy to leave it to the parties and the other side made wholly sensible amendments so we could agree directions. We replaced the preamble with the following words.

“Warning:  you must comply with the terms imposed upon you by this order. The parties are at liberty to agree to extend the time for doing any of the directions in these Directions only if the ability of this action to take place within the trial window is not jeopardised.”

Even here we cannot be certain that this would override the specific terms of the rules.

SURVIVAL GUIDE

For the time being I would urge great caution on this issue and the only truly safe course seeking an express order of the court in accordance with the Practice Direction. This can be done by consnt.

OTHER USEFUL BLOG POSTS ON EXTENSIONS OF TIME