How to agree on a reasonable extension

In Hallam Estates and Anr v Baker [2014] EWCA Civ
661, Lord Justice Jackson clarified the effect of his
recent civil justice reforms on applications for extensions of time. He welcomed the fact that his recommendation on being less tolerant of unjustified delays and breaches of orders had been implemented (by way of amendment to CPR 3.9).

However, he noted that “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...

“Nor was it any part of my recommendations that the
court should refuse to grant reasonable extensions of time.”

Jackson LJ also referred to
the recent amendment to CPR 3.8, which came into force on
5 June, allowing parties to
agree extensions up to a maximum of 28 days, provided that the extension does not
put any hearing date at risk.

In this respect he noted
that “legal representatives are not in breach of any client
duty, when agreeing to a reasonable extension which neither imperils future hearing dates nor otherwise disrupts the conduct of litigation.

“On the contrary, by avoiding the need for a contested application they are furthering the overriding objective and also saving costs for the benefit of their own clients.”

Jackson LJ also confirmed that ‘in-time’ applications for an extension of time (i.e. made before the time for compliance has passed), even if dealt with by the court after the expiry of the relevant period, will be dealt with in accordance with the overriding objective and that the guidance in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 is not applicable (confirming the recent first instance decision of Kaneria v Kaneria [2014] EWHC 1165 (Ch)).

However, it should be remembered that applications for retrospective extensions of time (i.e. made after the time
for compliance has passed) will be treated as applications for relief from sanction and the guidelines in Mitchell will therefore apply.

This position was confirmed in Associated Electrical Industries Ltd v Alstom UK [2014] EWHC 430 (Comm), McTear and Anr v Engelhard and Ors [2014] EWHC 722 (Ch) and, more recently, by the Court of Appeal in Baho and Ors v Meerza [2014] EWCA Civ 669, in which the court refused a request for a retrospective time extension for filing an appeal notice (served seven days late) in relation to a committal order.

SJ

John Bramhall is president of the London Solicitors Litigation Association (LSLA) and partner and head of commercial litigation at DAC Beachcroft and Melissa Jones is a professional support lawyer at the firm