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14 April 2020

COVID-19: procedural rules on deadlines relaxed but how far do they go?

The third of three new practice directions, released swiftly in response to the disruption caused by the coronavirus outbreak, expands parties’ ability to agree extensions of time between themselves without recourse to the courts. This is a pragmatic response to a fast-evolving and unpredictable situation. However, the practice direction as drafted raises questions over just how far it will apply.

The new practice direction

Practice Direction 51ZA (PD 51ZA) makes provision for parties to agree extensions of time to comply with procedural time limits in the Civil Procedure Rules (CPR), its practice directions and court orders. It runs until 30 October 2020 and expressly modifies CPR 3.8.

CPR 3.8(4) contains what is known as a “buffer order”. This allows parties to agree extensions of time between them, without recourse to the court, of up to 28 days in circumstances where otherwise a sanction would apply to a failure to comply with a specified time limit. This is subject to the proviso that agreement is reached in writing beforehand and that any extension does not put at risk a hearing date.

The new PD modifies this 28 day period, giving parties the ability to agree extensions of up to 56 days, subject to the same conditions.

Any extension beyond this will require the permission of the court.

What this means for parties

The relaxation of the 28-day cap will be welcome for parties working under no doubt challenging circumstances, particularly when facing deadlines which may contain stringent automatic sanctions. It will also spare a court system hurriedly adjusting to remote working numerous applications for extensions of time.

However, the PD is limited to a modification of CPR 3.8. While this will cover many of the key time limits in the procedural rules, it is not the only provision in the CPR that imposes a cap on parties’ ability to agree extensions of time between them without reference to the court.

For example, in the context of Part 8 claims, PD 8A paragraph 7.5 provides a mechanism for parties to agree an extension of time for serving and filing evidence. This is subject to a cap of 14 days for a defendant after they file their acknowledgement of service and, for a claimant serving evidence in reply, 28 days after service of the defendant’s evidence. It is not apparent that the new PD covers this part of the rules and so parties may still find themselves approaching the court for a further time extension beyond the 14 or 28 day period as necessary.

Meanwhile, for the Commercial Court, 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. As the court memorably reminded parties in Griffin Underwriting Ltd v Varouxakis (Free Goddess) [2018] EWHC 3259 (Comm), it takes “three to agree” when it comes to varying time limits in the Commercial Court. PD 58 refers only to CPR 2.11, which sets out parties’ general ability to agree extensions of time. No reference is made to CPR 3.8, but given that CPR 2.11 cross-refers to it, and the obligatory nature of paragraph 7.1, the sensible view would have to notify the court of any agreement concluded between the parties.

Time extensions for defences inhabit arguably a grey area. CPR 15.5 contains its own regime, allowing parties to agree an extension of time for filing a defence of up to 28 days, after which a defendant is required to apply to court if it needs more time. It is not immediately clear that the new PD covers this situation (though one can see the sense in it doing so) so parties erring on the side of caution may find themselves approaching the court to seek the necessary time extension.

Finally, it is important to remember that statutory limitation periods are unaffected by the relaxation in the rules and a party facing the expiry of a relevant limitation period will need to agree a standstill with their opponent or else ensure that they file their claim form in time.

A “free pass” for more time?

The obvious risk with any relaxation in approach is that an obstructive party will seek to take advantage of it.

The new PD says that it provides guidance to the court when considering applications for extensions of time and adjournments. It states that, in so far as compatible with the proper administration of justice, the court will take into account the impact of the Covid-19 pandemic when considering applications for extensions of time, as well as for adjournments or applications for relief.

Clearly this should not be read as a carte blanche for a party to drag its heels and delay unnecessarily, simply citing the existence of the pandemic as a reason. Parties will still need to substantiate requests for more time or an adjournment or relief. On the topic of adjournment, the courts have already demonstrated that the pandemic and the move to remote working will not guarantee parties an adjournment. The recent decision of the High Court in Blackfriars Ltd, Re [2020] EWHC 845 (Ch) is a case in point. There, the court refused to adjourn a five-week trial listed for June, requiring the parties to go away and explore technological options.

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