In a post Mitchell world the Courts are now taking a more robust and active approach to case management. In Mitchell v News Group Newspapers (2013) the Court of Appeal did not grant a party relief from a sanction imposed on them for failure to file their costs budget in time. This case and subsequent others have paved a zero-tolerance path for compliance with practice directions, court orders and rules. This article looks at one such example of robust case management, namely the requirement to seek an order from the Court in circumstances where both parties agree to extend the time for service of witness statements.
CPR Rule 2.11 enables the parties to vary the time specified by a rule or by the Court by written agreement between them. Historically, parties have often agreed to extend the deadline (set out in a court order) for service of witness statements.
The decision in MA A Lloyd & Sons Ltd v PPC International Ltd  EWHC 41 (QB) suggests that the practice of the parties agreeing between themselves an extension to the deadlines by which witness statements must be served (without reference to the Court) is no longer acceptable. Parties will now have to apply to the Court to extend the deadline and, if the application is after the deadline has expired, apply for relief from sanction.
In MA A Lloyd, the Claimant (C) was required by order to file and serve a witness statement or skeleton argument by 25 October 2013. In response, the Defendant (D) was to do the same by 29 November 2013. C failed to comply and D applied to the Court (i) for an extension of time to file and serve witness statements and also (ii) to adduce expert evidence. On the same day as the hearing of the application C's solicitors emailed D with a revised timetable for directions, but did not attend the hearing, despite their proposed order not being agreed.
Mr Justice Turner held that C was precluded from relying on witness evidence at trial.
In his reasoning Turner J referred to CPR Rule 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 failing to comply, the time for doing the act in question may not be extended between the parties. CPR Rule 32.10 specified the consequences of failing to serve a witness statement -namely that a witness may not be called at trial(and so the witness statement cannot be relied on as evidence).
Turner J considered that even if the parties had tried to reach an agreement on an extension of time this would not be effective unless the Court endorsed it.
In considering whether to grant relief from sanction under CPR Rule 3.9 and applying the reasoning in Mitchell, Turner J held:
- Non-compliance here could not be characterised as trivial, given C's delay was nearly 3 months;
- There was no evidence before the Court of any good reason for delay. The fact that C volunteered a consent order at the last minute did not salvage their position.
Whilst the above case indicates the Court's robust approach when considering whether to grant relief from sanction (in this case whether a party is precluded from relying on witness evidence), the more recent case of Chartwell Estate Agents Ltd v Fergies Properties SA and another [ 2014] EWHC 438 indicates that whether relief is granted by the Court ultimately depends upon the circumstances of the case.
In Chartwell Mr Justice Globe considered that even though the Claimant's breach:
- Was not trivial (C failed to make an application for specific disclosure and failed to apply for an extension of time to the witness statement deadline); and
- The default did not constitute a good reason (C could have served their witness statements at Court in a sealed envelope and subject to the Defendant's disclosure).
it would grant relief from sanction and agree to an extension of time for 7 days for exchange of witness statements. MA A Lloyd and an earlier case of Durrant  EWCA Civ 1624 were distinguished on the basis that in both of those cases the failure to serve witness evidence would affect the trial date, whereas in Chartwell the trial date would not be affected.
In addition, Globe J considered it too severe not to grant relief in circumstances where both parties were at fault. Both D and C were required to file their witness statements at the same time and neither did so. This was unlike MA Lloyd where witness statement exchange was sequential. If the Judge failed to grant relief it would mean an end to the action. The Court of Appeal have upheld this decision.
The Courts are in a difficult position at present. Whilst they are trying to actively manage cases and adopt a robust case management approach there is a danger of there being extremes. We are aware of an application for relief from sanction having to be made in circumstances where service was 72 minutes late, but technically (in accordance with the Civil Procedure Rules) service was the next day. Instances such as these will no doubt result in satellite litigation. Accordingly a buffer rule is being considered by the Civil Justice Rules Committee to allow parties to agree extensions of up to 28 days for serving certain documents without needing to make an application to Court.
For now however, practical tips are set out below:
If you think you will be unable to comply/you have not complied with a witness statement deadline
- Try to agree the extension of time with the other side. If you can agree you will still need to apply to the Court for its approval (and potentially for relief from sanction). You can however refer to the parties having agreed to the extension and enclose a consent order.
- Apply as soon as possible to avoid criticism from the Court.
- If the deadline passes you will need to apply to the Court for relief from sanction.
- When making an application make sure you address:
- the criteria in CPR Rule 3.9; and
- the nine factors set out in the old CPR Rule 3.9 and the overriding objective (for completeness). Consider whether to try to argue that the breach is trivial and /or there is a good explanation for the breach.
- If you have any other case management deadlines which need to be extended as a result, consider including those directions within the order you are seeking even though there may not be an equivalent sanction to CPR Rule 32.10.
If the opposing party is unable to comply/has not complied with a witness statement deadline.
- If you are ready to exchange and your opposing party is not, you can require them to make an application for an extension of time and for relief from sanction. This could be a quick, cheap way to strike out a claim.
- If you do insist upon the opposing party making an application, try to comply with the deadline yourself – e.g. file your witness statements at Court in a sealed envelope and offer the same to the opposing party but requiring them to give an undertaking not to open the envelope.
Whilst the case law suggests that the Court are taking a robust approach and an adverse costs order is unlikely in the current climate, there is still a risk. One option is to require the application but err on the side of caution and agree not to oppose the other side's application. There is a position of strength in acting reasonably in the circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.