The Civil Procedure Rules are to be amended to allow parties to agree time extensions of up to 28 days for serving certain documents, without needing to make an application to the court.
A conference to assess the impact of the Jackson reforms held by the Civil Justice Council (CJC) on Friday was told that the new ‘buffer’ measure will be approved by the Civil Procedure Rules Committee at its next meeting, in a few weeks’ time.
It will be written into the rules rather than forming part of a new model direction as for clinical negligence cases, and will allow parties to agree limited time extensions for matters such as serving witness evidence.
The new buffer will apply across all areas of civil litigation.
It is intended to alleviate the intense pressure being experienced by courts as solicitors who fear being ‘Mitchelled’ – finding their claim or defence struck out due to a procedural breach, as district judges attempt to apply the new guidance set out in Mitchell v News Group – are overloading the courts with applications for extensions of time to file witness statements and other documents, or pre-emptively seeking relief from sanction where a deadline has been missed.
The CJC received nearly 70 formal responses to its call for evidence over the impact of the Jackson reforms, 12 months on. Many of these referred to substantial delays in the lower courts, which are attributed to a steep rise in applications for time extensions or relief from sanction following Mitchell.
One submission, from Yorkshire firm Morrish, revealed that an ‘excessive’ delay in typing and serving orders by the court meant that on more than one occasion, it had received a court order after the actual date for compliance had passed – making it impossible to comply.
In an example given by the firm, the judge refused to change the deadline in an order that had arrived too late to comply, and the client was left with no alternative but to appeal – extending the court’s workload even further. Highlighting this instance at the conference, which was held under the Chatham House rule, one commentator described it as: ‘A combination of Catch 22, Bleak House and Kafka’.
Lawyers described the strict new emphasis on compliance as making them fearful of continuing their previous pragmatic approach towards opponents regarding deadlines, for fear that this will expose them to professional negligence actions from clients.
At the CJC event, it was suggested that the new ‘buffer’ rule will go a long way to obviate the need to apply for extensions.
However, delegates were reminded of the reason why CPR 3.9 had been amended, with many practitioners having sought a tougher compliance regime, and complained that their opponents in litigation were frequently allowed to flout court orders and rules unpunished.