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This is what we always meant

By S

Regular readers of this blog (when it is accessible) will know that we are a housing law blog. However, housing law (for the most part) is covered by the overarching umbrella of civil law and we do therefore occasionally cover the odd important non-housing civil law development. It is for that reason that we have been following with interest (as is every single civil lawyer in England and Wales) the “fall-out” from the Jackson reforms.

For those (but I doubt there are many) that aren’t aware, it is now really hard to get relief from sanction; unless the failure to comply is trivial or you have a  really really good reason for missing a deadline in a court order or one imposed by a rule then you will not get relief from sanction, irrespective of anything else (see Mitchell and a number of cases following – see here, here, here and here our other notes on the subject).

Now as you might imagine any half-decent litigation lawyer has worked out that the other side’s failure to meet a deadline is, a, a great opportunity to strike them out and get a great result for your client and, b, a great excuse for racking up more costs in pursuing applications to strike out at the slightest hint of a failure to comply with a deadline. This has resulted in a quite significant amount of satellite litigation and, you would think, increased costs to both the parties and the courts.

“Whoa there! Hang on a minute”, I hear you cry, “Wasn’t the whole point of the Jackson reforms to reduce costs incurred by parties and the court service?” Indeed it was. “Well is Jackson not quite working out as intended?” you may also suggest.

I couldn’t possibly answer that question. However, the powers that be and the Court of Appeal/High Court may (and I can put no higher than this) be concerned that things aren’t quite going according to plan and are rowing back slightly from the intolerant approach to case management. First, on 5 June 2014, the CPR will be amended. Rule 3.8(4) will now read:

“(4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date.”[Paragraph (3) being the rule that as soon as an order requires a party to do something the time for compliance may not be extended by agreement].

Second, Jackson LJ has given us new (and slightly different) guidance in Hallam Estates Ltd v Baker [2014] EWCA Civ 661 of what he meant should happen:

“[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.”

So where does this leave us? When are the courts to be harsh or not? On its face, the strict approach applies in all circumstances other than where a party asks for an extension of time where it does not imperil a court hearing. Which I would have thought will be quite a lot of the time. We will have to wait for further developments and more satellite litigation.

S is a barrister, based in London, who practices predominantly in housing and local government law.



  1. CIVIL PROCEDURE, COSTS & SANCTIONS: LINKS TO RECENT ARTICLES AND POSTS | Civil Litigation Brief - […] Nearly Legal reviews the case law on sanctions in This is what we always meant. […]
  2. Case Law on Compliance with Directions (Post Mitchell Update) - The Community Law Partnership - […] […]

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