What a Relief !
Jackson LJ handed down his decision yesterday in Hallam Estates Ltd & Anor v Baker  EWCA Civ 661 (19 May 2014). Some have written that this is a Court of Appeal decision which effectively grants relief by overturning a case management decision refusing relief. This isn’t exactly true. What this decision does do, however, is differentiate between a pro-active, proportionate and reasonable approach to case management by the making of an ‘in time’ application and non-compliance where an application for relief from sanctions is required after the event.
Briefly, this case concerned detailed assessment proceedings where a paying party made an application to the Court for an extension of time to serve Points of Dispute. Points of Dispute are required by the rules to be served within 21 days from service of the Notice of Commencement failing which a default costs certificate can be entered against the paying party. The paying party here made their application within the 21 day period (albeit only just). The Court granted the application on paper. The receiving party successfully appealed that decision on the basis that the application was made out of time and was therefore, essentially, an application for relief which should not be allowed. The Court of Appeal allowed a second appeal, thereby reinstating the first instance decision, finding the application for an extension to have been made in time which did not make it an application for relief. Accordingly, CPR.r.3.9 (and all that has gone on in its regard recently) did not apply.
The Court of Appeal found that, ‘…the claimants made a reasonable application for an extension of time, which did not imperil any future hearing dates or otherwise disrupt the proceedings.’Accordingly, that would seem to be the test for in time applications for extensions of time. The message? Be pro-active, be proportionate and be reasonable.
On a slightly separate point dealt with in the Hallam case, currently where a party seeks an extension of time for service of Points of Dispute and the parties agree to that extension of time, an application is still necessary pursuant to CPR.r.3.8(3) although such an application would be ‘…a formality’ according to the Court of Appeal. However, Jackson LJ advised that ‘…rule 3.8 will shortly be amended so that in the ordinary way parties can, without reference to the court, agree extensions of time up to 28 days, provided that this does not put at risk any hearing date.’ The implication here is that this will also extend to agreements between the parties as to extensions of time for service of Points of Dispute.
By Nick McDonnell, Senior Associate/Costs Lawyer