We civil litigators have all been given a very nasty shock by the most recent and most disturbing cases of M A Lloyd v PPP International, When the case was first out the interest was on the Claimant’s lawyers, who have an interesting professional history. But this was a distraction. Because Turner J decided that the time for service of witness statements, and indeed most other times for doing things, can no longer be extended by agreement of the parties. There has to be an order of the court. There’s a useful comment on this and some other similar issues on the Nearly Legal blog here.
The reason given by the Judge was CPR 3.8(3) which provides that
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
As CPR 32.10 says that if witness statements are served late the witness concerned cannot be called without leave of the court, these are “consequences” and so the time cannot be extended by agreement.
And because of Mitchell the court should only extend time if there are exceptional reasons, such as the solicitor concerned being taken seriously ill. So instead of agreeing with your opponent to exchange expert reports 7 days later than ordered, because the expert is being a bit slower than you would like, and there being no harm to either party, and no delay on the trial date, solicitors are now going to have to make an application for an extension of time which may well be treated by the court as an application for relief from penalties, under CPR 3.9, which the court should normally refuse, under the Mitchell doctrine.
Previously it had always been assumed that the reference to the “consequences”was a reference to an “unless” order when the court had prescribed penalties because of previous failures to adhere to the rules, but this no longer seems to be the case. And it is a serious matter. There are consequences set out in the rules for failing to include documents in Lists of Documents, failing to serve witness statements in time, and numerous other things. In all these cases the parties are going to have to make applications for extension of time. And although it is only the decision of a judge at first instance, the decision by Turner J, a High Court Judge, will be binding on all Masters and DJs, who handle the vast majority of this work. They had better not book too much holiday in the next few months because they are all going to be working their socks off for the foreseeable future.
It may be that the CA steps in to sort matters out, but I doubt it, given Mitchell. We’ll have to see how things develop.
The best way to do so is to follow Gordon Exall’s excellent blog Civil Litigation Brief which covers everything remotely connected to the problem. (What will he do when it’s all sorted out, as it surely has to be?)