Mitchell madness recedes

In a quite extraordinary case in November last year, the Court of Appeal upheld an order made by a Master that severely, and many think unfairly, punished a Claimant’s solicitor for failing to serve a document in time before a hearing as required by the rules. This led to the courts being deluged with applications for extensions of time limits, as lawyers sought to disadvantage their opponent by refusing to agree extensions.

Last week the Court of Appeal confirmed that where reasonable applications for an extension of time are made before the relevant deadline has expired, they should be allowed provided that the extension does not disrupt the conduct of the litigation.

To provide further encouragement to litigants to resume the practice of agreeing extensions, the rules committee have introduced a new “buffer” rule, which comes into force on 5 June. This rule allows parties to extend time limits by up to 28 days by prior written agreement, provided that no hearing date is put at risk by the extension.

Background

In Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, Mr Mitchell failed to file his costs budget on time. In accordance with Civil Procedure Rule 3.14 (that came into force on 1 April 2013), this meant that he would only be allowed to recover his court fees and none of the other costs he had incurred in the case. The Court of Appeal refused to grant him relief from this sanction. This case led to a breakdown in cooperation between litigating parties, who refused to agree extensions of time to deadlines in the hope of achieving a tactical advantage (for example, by having their opponent’s case struck out, or being penalised on costs). The increasing reluctance of parties to agree led to a deluge of applications to court for extensions of time. Hallam Estates Ltd and another v Teresa Baker [2014] EWCA Civ 661 is one of the latest decisions to consider whether an extension of time should be granted, in this instance in the context of detailed assessment proceedings where, prior to the expiry of the relevant deadline, the claimants had requested an extension of time in which to serve their points of dispute.

Decision

In Hallam, Jackson LJ acknowledged that there was now a “new and more disciplined approach to the conduct of civil litigation.” The more robust approach adopted by the Court of Appeal in Mitchell and subsequent cases is the correct approach where there has already been a breach of the relevant deadline or rule, such that it was appropriate to impose the sanction provided for in the Civil Procedure Rules. However, reasonable requests for an extension of time that are made prior to the expiry of the relevant deadline should not be dealt with in the same way as an application for relief from any specific sanction imposed for non-compliance. Rather, such requests should be judged against the overriding objective (to deal with cases justly and at proportionate cost). Provided such extensions did not have an adverse impact on hearing dates or otherwise disrupt the proceedings, parties should agree to such requests. By doing so, they would be avoiding the need for a contested application and saving costs for the benefit of their own client.

In providing his judgment, Jackson LJ noted that from 5 June, Civil Procedure Rule 3.8 will be amended to allow parties to extend time limits for up to 28 days by prior written agreement, provided that such an extension will not affect any hearing date.

Commentary

The tide is turning against parties using the Mitchell case as a weapon to seek tactical advantage over their opponents in litigation. The courts are encouraging parties to respond positively, in a spirit of co-operation, to reasonable requests. It has always been the case that in circumstances where the relevant rule does not impose a specific sanction for non-compliance, the parties are free to agree extensions of time between themselves without needing to apply to court. The buffer rule now allows parties to agree extensions where otherwise a sanction would be imposed for failure to comply with the relevant deadline. It is not yet clear how the courts will determine whether an extension is likely to put at risk any hearing date. Practically, parties should keep abreast of their deadlines and seek to agree in-time extensions where possible. If no agreement is reached, parties should make an application to the court prior to the expiry of the deadline with a convincing explanation of why an extension is required, in order to increase their chances of obtaining court approval.

Further reading

Click here for the the Hallam judgment

Click here for the statutory instrument introducing the “buffer” rule