An amendment is to be made to the Civil Procedure Rules which will allow parties to agree extensions of up to 28 days for the service of certain documents, without the need to make an application to the Court.
Following a recent Civil Justice Council Conference which considered the impact of the Jackson reforms it has been decided that the Civil Procedure Rules Committee will approve the introduction of a new “buffer” measure which should allow parties to agree limited time extensions for matters such as the serving of witness evidence. This introduction will follow a similar model direction that was introduced for clinical negligence claims.
The amendment is expected any time soon, although the precise date of its introduction and the wording do not appear to have been finalised.
So is this the CJC attempting to counter the effect of Mitchell or simply a victory for common sense? Clearly the purpose of the amendment is to avoid the courts being inundated with defaulting parties having to make applications for relief where pre-Mitchell such applications would not have been made.
Whilst such an amendment is to be welcomed, one questions whether it will succeed for as long as the current climate of non-co-operation and fear created by Mitchell pervades. It raises the obvious question that if you are the party that doesn’t seek the extension, providing you are in a position to comply with the Court Order, why would you agree an extension? Why lose a potential tactical advantage and how could you ever procure instructions from your lay client to this effect?
The issue is likely to become when will it be unreasonable to refuse such an extension? When the need to extend arises due to delay on the part of a third party, e.g an expert, which is out of the control of the party, one would have thought it unreasonable to refuse. However, what happens if the delay has simply arisen due to the pressure of work? That is unlikely to be sufficient or good enough reason to agree an extension as it would not fall within the definition of a “good reason” for the purpose of Mitchell.
It remains to be seen whether the introduction of a buffer will lessen the effect of Mitchell and go some way to restoring the spirit of tolerance and co-operation, which by and large, had previously existed. This would seem unlikely until the Court of Appeal offers some firm guidance as to when it would be reasonable to agree an extension.