Time Travel

The Jackson reforms of April 2013 ushered in a new era in which the courts will exercise more stringent case management, with an emphasis on compliance with rules and directions. Adherence with time limits is of paramount importance. One of the key questions that the courts have grappled with is how rigorous a test will apply to applications for extensions of time. In so doing, the courts have drawn a clear line between applications made “in time” and those made retrospectively. In the recent case of Everwarm Ltd v BN Rendering Ltd (Rev 2) [2019], the question arose in the context of compliance with an unless order and whether this blurs the line.

THE CPR

Generally, extensions to timings specified by either the Civil Procedure Rules (“CPR”) or the court may be varied by the following means:

• By agreement between the parties. Pursuant to CPR 2.11, the parties may agree between themselves to vary a time limit, unless the CPR, a practice direction or court order provides that such time limit may not be varied. CPR 3.8 is one such provision, which deals with deadlines where a sanction is automatically imposed on failure to meet it. Where CPR 3.8 applies, the parties may still agree an extension of up to 28 days by prior written agreement pursuant to CPR 3.8(4), provided that this does not put at risk any hearing date.

• By court order. Where agreement is not possible between the parties, the party seeking the time extension may apply to the court for an order. Under its general powers of case management pursuant to CPR 3.1(2)(a), subject to where the CPR provides otherwise, the court may extend or shorten the time for compliance with any rule, practice direction or court order. This can be exercised retrospectively as well as prospectively.

Before seeking to agree a variation in time, a party should always check any relevant court order, the provisions of the CPR and the court guides. CPR 3.8 is not the only restriction on the parties’ ability extensions of time. For example, CPR 29.5 provides that dates fixed by the court for a case management conference, pre-trial review, the return of the pre-trial checklist, the trial or the trial period cannot be varied between the parties and no other date may be varied if it would have the knock-on effect of varying one of these dates.

AGREEMENT BETWEEN THE PARTIES

Form of agreement

The agreement may take the form of a single document signed by both parties, an exchange of letters between the solicitors concerned or an oral agreement subsequently confirmed in writing by both parties. In Ian Thomas v Home Office [2006] , the court made it clear that an oral agreement to vary a time limit should be confirmed in writing by both sides in this way; a letter recording an oral agreement sent by one party to another, which remains unanswered by the recipient, would not be sufficient.

Notifying the court

Upon reaching agreement between the parties to an extension of time pursuant to CPR 2.11 or CPR 3.8(4), the court should be notified as a matter of good practice. In the case of the Commercial Court, this is mandatory for all time variations. Practice Direction (“PD”) 58 paragraph 7.1 provides that, where the parties in accordance with CPR 2.11 agree in writing to vary a time limit, the claimant must notify the court in writing, giving brief reasons for the agreed variation. Meanwhile, paragraph 15.35 of the Chancery Guide requires notification to the court if the parties agree to extend the time limit specified in the Notice of Provisional Allocation (Form N149C).

The notification to the court will usually be by way of a consent order. Pursuant to PD 29.6.5, PD 28.4.5 and PD 23A.10.4, the applicant must file at court:

1. A draft of the order sought, signed by or on behalf of each party; and

2. An agreed statement of the reasons why the extension is sought.

The court may make an order in the agreed terms or in other terms without a hearing or may direct that a hearing be listed. The court may include conditions and specify the consequences of failure to comply with the terms of the order. While an unopposed extension of time that will not impact on any hearing date is likely to result in a straightforward endorsement by the court, it should never be forgotten that it is ultimately a matter of discretion for the court.

When is it reasonable to withhold consent to an extension?

In Hallam Estates Ltd and others v Teresa Baker [2014]  and Denton v White and other appeals [2014], discussed below, the Court of Appeal made it clear that an unreasonable opposition to a request for a time extension will likely be penalised in costs. That said, there may still be circumstances where it is reasonable to withhold consent to an extension. In R (Idira) v The Secretary of State for the Home Department [2015], the Court of Appeal held that, despite the encouragement in Denton for parties to agree reasonable requests for extensions, parties did not have to agree an extension in every case, and most notably where:

• the extension would disrupt the appeal timetable; or
• cause prejudice.

APPLYING TO THE COURT

Where one party seeks to vary a time limit but has been unable to obtain the consent of the other party, it will need to issue an application to the court. This should be made in accordance with the usual procedure for interim applications contained in CPR 23 and not on an informal footing, as happened in the recent case of Saint Benedict Land Trust Ltd v London Borough of Camden and another [2019]. Here, the court made it clear that informal correspondence with the court via email would not be adequate.

The application will need to be supported by robust evidence explaining why the extension is necessary and the reasons for the delay. The application should also be made before expiry of the deadline. The importance of this is highlighted by the courts’ approach to in-time and retrospective applications and the clear dividing line between them.

A BRIEF HISTORY OF TIME (EXTENSIONS)

Mitchell robustness

The tougher stance towards time extensions taken by the courts following the Jackson reforms was made plain in the well-known case of Mitchell v News Group Newspapers [2014] . There the court emphasised that, if a party anticipates missing a deadline, an application to the court for an extension of time should be made promptly and before the deadline has expired to achieve the greatest chances of success.

The court’s decision in Mitchell created the general view that if a party withheld its consent to an extension request, thus forcing the other party to make a formal application to the court, the applicant was likely to find it harder to obtain the time extension requested from the court. It was also accepted that, if a relevant time limit had already expired, defaulting parties could expect to struggle to obtain relief from sanctions.

This position resulted in a slew of truculent behaviour among litigants who took the view that it would make little strategic sense to agree to waive an opponent’s breach, if the court was in any event likely to penalise the breaching party, to the benefit of the non-breaching party. As a result, the volume of applications for relief from sanctions as well as applications for extensions of time went up and the volume of court time associated with hearing those applications increased accordingly, drowning the overriding objective in a sea of satellite litigation.

Help from Hallam

Hallam changed the complexion of the post-Mitchell landscape by introducing a greater sense of clarity and focus around the concept of reasonableness in making and accepting requests for extensions of time. In Hallam, Jackson LJ implemented an approach which placed the onus on applicants to make reasonable requests and on respondents to agree such requests.

In considering what factors would prove valuable when assessing the reasonableness or otherwise of a request, Jackson LJ placed an emphasis on factors such as whether the extension sought would negatively impact future hearing dates or otherwise disrupt the conduct of the litigation. In the absence of such factors, the parties were to be encouraged to further the overriding objective by endeavouring to agree reasonable extensions of time and avoiding the need for contested applications and recourse to the courts.

Jackson LJ also took the opportunity to clarify that the Mitchell criteria, which applied to applications for relief from sanctions, did not apply to applications for extensions of time made before the relevant deadline had expired. It remained clear that, in general terms, “in time” applications made before the expiry of the relevant deadline would be treated more favourably than those made after the expiry of the relevant deadline, this being so regardless of whether the relevant application was to be heard after the deadline had passed.

Denton developments

The Court of Appeal clarified and amended the Mitchell guidelines in Denton and went one step further in developing Jackson LJ’s concept of reasonableness in Hallam. In Denton, the Court of Appeal issued a strong warning that parties should co-operate and, instead of merely considering the reasonableness of requests, should not unreasonably refuse requests for time extensions or unreasonably oppose applications for relief from sanctions.

Unless Orders

In Everwarm, the court was required to consider how rigorous a test should apply to an application for a time extension in the context of compliance with an unless order.

The court had made an unless order requiring the defendant to make a payment into court for security for costs in relation to its counterclaim. The defendant issued an application for an extension of time to comply half an hour before the deadline. The application was heard after the deadline had expired.

The claimant contended that:

• Notwithstanding the application, the defendant's counterclaim was struck out automatically following the defendant's failure to comply with the unless order.
• As a consequence of the automatic sanction, the applicable test was whether the court should grant relief from sanctions pursuant to CPR 3.9.

The claimant distinguished Hallam on the basis that that case did not deal with an unless order. The defendant argued that it made no difference that the order in question was an unless order. As the application was made in time, the court's general power to extend time for compliance with any order (CPR 3.1(2)(a)) applied.

In granting the extension of time, the court was clear that the existence and effect of an unless order did not change the position established in Hallam and other cases. It noted that CPR 3.1(2)(a) does not distinguish between routine court orders and unless orders and that the court applies the overriding objective, however brief the period between the application and the expiry of the deadline.

A Word of Caution

While the court took an approach consistent with existing authority and was unpersuaded that the presence of an unless order should change this approach, practitioners should not automatically assume that any “in time” application will get them over the line with the court. The granting of all such applications, as an exercise of its general case management powers, remains in the discretion of the court.

When it comes to unless orders, whilst the CPR makes no distinction between routine and unless orders, since the court is applying the overriding objective, it will no doubt expect particular compliance with unless orders, given their seriousness. In Everwarm, the defendant’s cause was assisted by the fact that it had made bona fide attempts to comply with the order and the court did not consider there to be any real prejudice caused to the claimant by permitting the extension.

While the headline point may be that in-time applications will likely be treated more favourably by the courts, whether or not it concerns an unless order, practitioners should not lose sight of the fact that any application should be made expediently and that the supporting evidence will need to demonstrate good reason for both the delay and the extension sought.

This article was first published by the Commercial Litigation Journal.

Everwarm Ltd v BN Rendering Ltd [2019] EWHC 2078 (TCC)
Ian Thomas v Home Office [2006] EWCA Civ 1355
Hallam Estates Ltd and others v Teresa Baker [2014] EWCA Civ 661
Denton v White and other appeals [2014] EWCA CA Civ 906
R (Idira) v The Secretary of State for the Home Department [2015] EWCA Civ 1187
Saint Benedict Land Trust Ltd v London Borough of Camden and another [2019] EWHC 1433 (Ch) (17 May 2019)
Mitchell v News Group Newspapers [2014] EWCA Civ 1537