THE REMAINING PROBLEM OF HISTORICAL AGREEMENTS TO EXTEND TIME: USEFUL GUIDANCE FROM PREVIOUS AUTHORITIES ON CIVIL PROCEDURE

 ANDREW WILKEY –V- BRITISH BROADCASTING CORPORATION [2002] EWCA Civ 1561

Wilkey was a case in which the Court of Appeal considered the practical impact of the decision in Godwin v Swindon Borough Council [2002] 1 WLR 997 and Anderton v Clwyd County Council and other appeals [2002] 3 All ER 813,

THE PRACTICAL PROBLEM

A practical problem had arisen because (as originally drafted) the Civil Procedure Rules had deeming provisions for the service of a claim form.  As a result of the Court of Appeal’s decision  in Godwin a claim form could be “deemed” to be served after it was actually received.  Further the Court of Appeal had made it clear that retrospective applications to extend time would only be granted in exceptional circumstances.

This left many in the profession nonplussed.  Documents were deemed to arrive after they had actually arrived. Claim forms which many thought had been safely served were, in fact, deemed to have been served out of time (It is hardly surprising that these Rules were changed).  The court was considering how to approach cases where the claim form had actually been received within the four month period for service, but was “deemed” by virtue of the rules, to have arrived outside the four month period.

THE COURT’S SOLUTION IN WILKEY

The Court of Appeal’s solution was to draw a clear distinction between cases where service had taken place before the legal position as to service became clear and those where service had taken place afterwards.  Simon Brown L.J. observed:

18.       The solution I would propose to the problem is this. In category 2 cases which, like he present (and, as I am led to believe, like a number of other appeals now awaiting hearing in this court) involve deemed late service before this court’s decision in Anderton, the rule 6.9 dispensing power should ordinarily be exercised in the claimant’s favour unless the defendant can establish either that he would suffer prejudice (apart, obviously, from the loss of his Limitation Act defence) or some other good reason why the power should not be exercised.

Merely to establish that the claimant has been guilty of avoidable delay in either the issue, or the service, of the claim form, or both, would not generally constitute such good reason. There will always have been some avoidable delay. Similarly, the fact that the claim looks unpromising would not generally be a good reason for refusing to exercise the dispensing power in a pre−Anderton category 2 case. In a post−Anderton case, however, the dispensing power should in my judgment ordinarily not be exercised in the claimant’s favour. These cases, albeit within category 2 and therefore in one sense to be regarded as exceptional, to my mind fall foul of paragraph 2 of the court’s judgment in Anderton. In these cases “a strict approach” should generally be adopted.

19.       This approach, in my judgment, will not only provide a useful guide as to how the court may be expected to exercise its discretion in these cases, but it also follows such guidance on the point as the judgment in Anderton affords. It would mean that the court in post−Anderton cases, quite logically, would be the readier to reject the claimant’s explanation for late service and to criticise his conduct of proceedings, both of these being identified in paragraph 59 of the judgment in Anderton as relevant considerations.”

 A SENSIBLE SOLUTION

This was a sensible solution to a real problem.  Solicitors had been misled (or misunderstood) the rules (who could have anticipated that the date of service was after the date a document arrived).  The “exceptional” provisions which allowed the service provisions to be dispensed with could be used, but only in cases before the courts had clarified the law.  The rules lost none of their potency and application made after Anderton

APPLYING THIS TO AGREEMENTS TO EXTEND TIME

There is no reason why a similar solution could not be adopted in cases where parties have agreed extensions of time in the past.  Virtually everyone in the legal profession believed that the parties could agree to vary directions. The practice was universal. It would be exceptionally harsh to penalise litigants for failing to anticipate the decision in Lloyd.

THE RELEVANT DATE

The relevant date is, most probably, shortly after the decision of Mr Justice Turner in M A Lloyd –v- PPC International Ltd [2014] EWHC 41(QB) was fully reported and ventilated. Within a time after that decision (and I would not venture to give a precise period) it was clear that any prudent litigator would seek court confirmation for an extension of time.