Practical Law

We are nearly one year into the Jackson reforms, but it would be fair to say that the full implications of the reforms are still being worked out by the courts. How the changes are operating in practice has generated much debate in the legal press, although much of the coverage has focused on the implications the rule changes might have on budgeting and cost recovery. The court’s no nonsense approach is now impacting on a party’s right to rely on expert and witness evidence.

Losing the right to submit evidence

Two recent non-construction cases highlight the risks in the post-Jackson era of not complying with deadlines and of agreeing to extend court deadlines.

An application in Chambers v Buckinghamshire Healthcare NHS Trust resulted in a refusal to extend the deadline for submission of the defendant’s expert report and an order debarring the defendant from relying on the expert evidence. In reaching her decision, Master Cook relied on CPR part 3.9 (Relief from sanctions). Master Cook found that it was relevant that the deadline for service of the evidence had already been extended more than once, the delay should and could have been foreseen by the defendant’s solicitor and the application was made more than a month after the date for service, with no good explanation for the added delay.

The second case is MA Lloyd and Sons Ltd v PPC International Ltd. The first sentence of Turner J’s judgment sets the tone for what follows:

“This case provides yet another example of a litigant treating an order of the court as if compliance were an optional indulgence.”

The claimant had been ordered to file its witness statement(s) and a skeleton argument by 25 October 2013. It failed to do so. On 9 December 2013, the claimant applied for an extension of time to serve its witness statement. That application was the subject of Turner J’s judgment.

CPR part 32.10 provides that if a witness statement for use at trial is not served within the time specified by the court, then the witness may not give oral evidence unless the court gives permission. Turner J held that the claimant’s delay of nearly three months was serious and not trivial and that the claimant was debarred from raising any issue at trial relating to the issues which were to be addressed by the witness statement and skeleton argument.

So far, so predictable, in the post-Mitchell world.

The end of reciprocal procedural indulgencies?

What is interesting about MA Lloyd v PPC is that the defendant sent a proposed consent order with a revised timetable to the claimant on the day of the hearing. Despite this, Turner J held that such an agreement would not be effective unless the court was persuaded to formally endorse it. In reaching this view, he relied on CPR part 3.8(3):

“Where a rule, practice direction or court order-
(a) requires a party to do something within a specified time; and
(b) specifies the consequences of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties.

There is a prescribed consequence for failure to serve a witness statement (CPR part 32.10) and therefore Turner J held that the parties were not entitled to agree an extension.

Turner J said that the court is under a duty under CPR part 1.4 not simply to rubber stamp the parties’ reciprocal procedural indulgences, but actively manage cases. He criticised the defendant’s approach in failing to contest the application as “unduly timid”.

The court’s reasoning puts a different understanding on the scope of CPR part 2.11 or 29.5.

CPR part 2.11 provides:

“Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.”

Historically, it has never been suggested that the freedom of the parties to extend deadlines under CPR part 2.11 is qualified by CPR part 32.10 (as read through CPR part 3.8(3)). If that is correct, very few deadlines can be changed by agreement of the parties.

CPR part 29.5 covers the most important exceptions to CPR part 2.11 for multi-track litigation (in particular, the dates for important events such as the CMC, PTR or trial or any variation which would in turn jeopardise those dates cannot be extended without permission of the courts). It is not clear from the judgment whether, on the facts, giving the extension would have jeopardised any of those dates. As it is not mentioned, it does not appear to have had a bearing on Turner J’s decision.

Redressing the balance

The outcome of the case is surprising and arguably unhelpful to both clients and the courts. It is difficult to see how the court will become more efficient and costs will be more proportionate by not allowing parties to agree consent orders, even where those consent orders only agree to extend time by a few days, and where there is no impact on the trial date or other hearings.

Perhaps because of that, the Ministry of Justice has approved the following wording to be included in paragraph 25 of the clinical negligence model direction used by the Queen’s Bench Masters:

“The parties may, by prior agreement in writing, extend the time for directions, in the Order dated xxxxxx, by up to 28 days and without the need to apply to Court. Beyond that 28 day period, any agreed extension of time must be submitted to the Court by email including a brief explanation of the reasons, confirmation that it will not prejudice any hearing date and with a draft Consent Order in word format. The Court will then consider whether a formal Application and Hearing is necessary.”

We will have to wait and see whether this sensible and pragmatic wording is adopted by the TCC, or more widely, in an attempt to stem the tide of extension of time applications. Rumour also has it that the CPR Committee is considering the drafting of CPR part 3.9, though it is not clear whether this will reverse or confirm the effects of MA Lloyd v PPC.

In the meantime, we can learn the following from the recent cases:

• Don’t agree to deadlines that you cannot meet.
• If you are going to miss a deadline, submit an application for an extension of time as soon as possible. Don’t wait until the last minute and in no circumstances wait until after the deadline has passed.
• If you need an extension, explain the reasons to the court in detail. Going on holiday or forgetting are not good reasons.
• If you are against an opponent who requests an extension or has missed a deadline, think carefully before agreeing to an extension. The court may criticise you for doing so.
• If the other side agrees to an extension, think carefully about whether you still need to make an application to the court.

In all, unless and until the model directions for clinical negligence are adopted more widely, I suggest seriously considering making an application to the court for any extension, whether agreed or not.