Jackson in the CA: – That’s not what I meant

PI_Nicola_Philipson Nicola Phillipson

In Hallam Estates Ltd v Baker[2014] EWCA Civ 66, Jackson LJ sitting in the Court of Appeal gave guidance as to when parties should agree extensions of time, and approved Kaneria – “in time” applications are not relief from sanctions, and the Mitchell criteria does not apply.

The paying party (“PP”) requested an extension of time to serve points of dispute in detailed costs proceedings. “They gave sensible reasons for this request and I would have expected the Defendant to agree.” The receiving party (“RP”) refused, and on last day for service the PP applied for an extension.  This was acceded to on the papers “an extremely sensible and cost-efficient course to take”.  The RP successfully appealed this decision and were granted a default costs certificate.  The PP appealed to the Court of Appeal.

You can probably tell from the italicised judgment extracts above that the appeal was granted.  The CA approved Kaneria; “an application for an extension of the time allowed to take any particular step in litigation is not an application for relief from sanctions, provided that the applicant files his application notice before expiry of the permitted time. This is the case even if the court deals with that application after the expiry of the relevant period”.  Therefore the Mitchell principles do not apply, and the application should be considered in accordance with the overriding objective.

Jackson LJ then said:

29 Since I am the author of the report upon which the recent civil justice reforms are based, I wish to say something about extensions of time. For the reasons set out on pages 396–399 of the report, I recommended:

“The court should be less tolerant than hitherto of unjustified delays and breaches of orders. This change of emphasis should be signalled by amendment of CPR rule 3.9 .”

That remains my firm view and I welcome the fact that the recommendation has been implemented, although some issues remain to be worked out in relation to the operation of the new rule 3.9 . There is now a new and more disciplined approach to the conduct of civil litigation, as illustrated in many recent cases. See, for example, MA Lloyd & Sons Ltd v PPC International Ltd [2014] EWHC 41 (QB).

30 Nevertheless it was no part of my recommendations that parties should refrain from agreeing reasonable extensions of time, which neither imperil hearing dates nor otherwise disrupt the proceedings. The contrary is the case, as explained in paragraphs 11 and 12 above. Nor was it any part of my recommendations that the court should refuse to grant reasonable extensions of time in those circumstances.

31 The Rule Committee has inserted a new sub-paragraph 1.1(2)(f) into the overriding objective. In my view this new provision (which was not one of my recommendations) does not require courts to refuse reasonable extensions of time, which neither imperil hearing dates nor otherwise disrupt the proceedings.

This should be read alongside his previous comments:

12 By way of digression I comment that rule 3.8 will shortly be amended so that in the ordinary way parties can, without reference to the court, agree extensions of time up to 28 days, provided that this does not put at risk any hearing date. A variety of circumstances may arise in which one or other party (however diligent) may require a modest extension of time. Under rule 1.3 the parties have a duty to help the court in furthering the overriding objective. The overriding objective includes allotting an appropriate share of the court’s resources to an individual case. Therefore legal representatives are not in breach of any duty to their client, when they agree to a reasonable extension of time which neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation. On the contrary, by avoiding the need for a contested application they are furthering the overriding objective and also saving costs for the benefit of their own client.




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