When time is of the essence

District Judge Stephen Morley looks at the process of extending time by agreement

The district judge has ignored the suggested directions carefully attached to your allocation questionnaire.

Whereas your suggestions made allowance for a pending two-week trip to Benidorm with the kids, the district judge has truncated your generous proposed time limits.

Do the Civil Procedure Rules 1998 (CPR) enable you to navigate around the court order by agreement?

At first glance, the headline to CPR rule 2.11 provides solace.

'Time limits may be varied by parties'.

It pays to read on.

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 unless (a dread word) the CPR or a practice direction provide otherwise.

Certain instances are given where written agreement will cut no ice with the court:

- Rule 3.8 - sanctions have effect unless defaulting party obtains relief;

- Rules 28.4 and 29.5 - variations of fast-track and multi- track case management timetables, and;

- Rules of the Supreme Court, order 59, rule 2C - appeals to the Court of Appeal.

You turn to CPR rules 28.4 and 29.5 and your thoughts focus on the cancellation provisions for your holiday.

An order of the court is required to vary any date for the return of the pre-trial checklist, the trial or trial period for the fast-track and multi-track respectively, or for a case management conference, or pre-trial review.

Both rules further provide that any date set by the court, or under the rules, for doing any act may not be varied by the parties if that variation would make it necessary to vary any of the dates that would require a court order to change.

So, the parties can agree to extend time for say the exchange of witness statements to their hearts content, unless the extension would adversely impact on the date for the return of the pre-trial checklist or any hearing date.

If there is any possibility of any such agreement having any knock-on effect as to these dates, then the court should be asked for an order by consent varying the relevant dates - an order that is not easily given.

One of the instances specified in rule 2.11 as precluding an agreement extending time limits is under rule 3.8.

If a party requires an extension of time for compliance with a rule, practice direction or court order and a sanction, in default, has been imposed by the court, then he must apply to the court.

Rule 15.5 deals with extensions of time for filing a defence and limits such extensions by written agreement to up to 28 days.

Apart from this and the exceptions in rule 2.11 it seems to me that the parties have free rein.

I have heard it argued that where a rule couches a direction to comply with a time limit in terms of 'must', this should be construed as a provision under rule 2.11, preventing an extension by agreement.

For me, the word 'must' does not carry this force.

District Judge Stephen Morley sits at Edmonton County Court