Coventry View

A litigation lawyer's perspective

No More Time – the importance of M A Lloyd v PPP International

with 4 comments

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?)


Written by Coventry Man

26/01/2014 at 18:41

4 Responses

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  1. […] they then stood. I said at the time that something would have to be done because it was unworkable (here) and after a time the CPR were changed to allow the parties to extend time by up to 28 days […]

  2. Since when did CPR 2.11 (general right of parties to vary timetable provided CMCs etc are not jeopardised)become subservient to CPR 32.10?

    It may be the case that, on the facts, the late exchange of evidence meant that the hearing date was impossible, and thus the revised timetable proposed by the parties could not be agreed by consent (i.e. the exception to CPR 2.11 set out under CPR 29.5 was applicable). But if so, this should have been covered in the judgment. None of these rules was even mentioned. Which leaves the (very surprising) impression that Turner J considers CPR 2.11 to be of negligible applicability post-Mitchell…

    Nick Pryor

    27/01/2014 at 17:11

    • Regrettably the matter is set out in r 3.8(3) which is quoted above. If there is any sort of penalty then the parties cannot use r 2.11 to extend time, as this is expressly prohibited by the proviso in 2.11 and the wording in 3.8. The disturbing development is the decision that a much wider range of obligations are caught by the definition of penalty, or, as the rules say, “consequences”.

      Coventry Man

      27/01/2014 at 17:41

  3. […] Coventry View takes a look at the recent sanctions decision in M A Lloyd -v- PPP International […]

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