MORE ON THE NEW RULES EXTENDING TIME: HOW DOES THE PRACTICE DIRECTION IMPACT ON THE RULES FOR EXTENDING TIME FOR SERVICE OF THE DEFENCE?
A very sensible question was asked on Twitter last week about whether the Practice Direction extending time applied to the very specific rule about parties agreeing an extension of time for filing the defence.
THE RULES RELATING TO FILING A DEFENCE
CPR 15.5 allows the parties to agree a 28 day extension for filing the defence.
“Agreement extending the period for filing a defence
(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.
(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.”
WHAT THE NEW PRACTICE DIRECTION SAYS ABOUT EXTENDING TIME
Practice Direction 51ZA makes a specific reference to CPR rule 3.8 but says nothing about CPR 15.5.
2. During the period in which this Direction is in force CPR rule.3.8 has effect as if in substitution for the reference to 28 days there was a reference to 56 days.
3. Any extension of time, whether agreed by the parties or on application by a party, beyond 56 days requires the permission of the court. An application for such permission will be considered by the court on the papers. Any order made on the papers must, on application, be reconsidered at a hearing.
WHAT CPR 3.8 SAYS
“(3) Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time, and
(b) specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties except as provided in paragraph (4).
(4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date.”
CAN THE PARTIES AGREE ADDITIONAL TIME?
My view is that they can. The rules in relating to filing a defence specifies the consequences of failure to comply (default judgment) and already allows a 28 day extension of time. Given the stated purpose of the Practice Direction “It is intended to assess modifications to the rules and Practice Directions that may be necessary as a temporary measure during the Coronavirus pandemic to ensure that the administration of justice is carried out so as not to endanger public health” it is unlikely that the Rule Committee intended to exclude the ability of parties to extend time for filing a defence.
“JUSTICE AND NOT ENDANGERING PUBLIC HEALTH”
It is significant that the question was asked (as I recall) by a solicitor carrying out defendant clinical negligence work. It is easy to appreciate the difficulties that clinical negligence defendants, in particular, will be having currently (and for the foreseeable future). Medical staff, and resources generally, are likely to be very stretched. It will be difficult, if not impossible, to take first-hand witness statements and obtain records. The stated aim of the Practice Direction is to “ensure that the administration of justice is carried out so as not to endanger public health”. Allowing the parties power to agree lengthy extensions of time so that the medical profession can practice undisturbed is clearly in lines with the stated aims of the PD itself.
*My apologies to the person who asked this question and those who suggested answers on Twitter. The exchange has disappeared from my Twitter Timeline so I can’t give credit where credit is due.