The recent case of Hallam Estates Ltd and Michael Stainer v Teresa Baker [2014] EWCA Civ 661 is a key decision in which Lord Justice Jackson himself overturned a case management decision refusing relief from sanctions. In light of the criticisms of his reforms, it would appear that Lord Jackson used this case as an opportunity to remind us that he never intended the parties or the court to be deterred from allowing sensible extensions.
Facts/Circumstances of the case
The Claimant was ordered to pay the Defendant’s costs, subject to detailed assessment if not agreed, following the dismissed defamation proceedings against the Claimant. The Defendant served her bill of costs and notice of commencement on 18th April 2013 and therefore under rule 47.9, the Claimant’s points of dispute were due by 14th May 2013. The Claimant attempted to agree a 21 day extension with the Defendant and provided sensible reasons for the same. The Defendant however, did not agree to any extension.
On 14th May 2013 (the date in which the points of dispute were due), the Claimant made an application to the SCCO for an extension of time until 18th June 2013, but the application was not formally issued until 15th May 2013. On the same date, the Defendant applied for a default costs certificate.
Initially, the matter was dealt with on paper and the costs judge made an order to grant the extension of time. The Defendant subsequently applied to set aside the order on the basis that the Claimant’s application was in fact an application for relief from sanction. The Defendant’s application to set aside the order was dismissed and the costs judge maintained that the Claimant’s application was for an extension of time, not for relief from sanction.
The Defendant appealed against the cost judge’s order and the appeal was granted by His Honour Judge Richardson QC. It was ordered that the Claimant’s application for extension of time was issued out of time and therefore the Claimant was seeking relief from sanction. It was ordered that the SCCO do issue a default costs certificate.
The Claimants were aggrieved by this decision and appealed to the Court of Appeal.
Court of Appeal
The Claimant’s appeal went before Lord Justice Jackson. It was held that as the Claimant’s application for an extension of time was made before the expiry of time for filing the points of dispute, it was a straightforward, in-time application and the fact that it was not issued until the following day was immaterial (see rule 23.5). Jackson confirmed that an application for an extension of time is not an application for relief from sanction and therefore the principles in Mitchell v News Group Newspapers Ltd [2-13] EWCA Civ 1537; [2014] 1 WLR 795 were not applicable. The Claimant’s appeal was allowed.
This case is of high importance as it represents Lord Justice Jackson setting the record straight and confirming that it was not part of his recommendations that parties should refrain from agreeing reasonable extensions of time, where that extension of time would not imperil any hearing dates or otherwise disrupt the proceedings.
Legislative change
The day after the appeal, The Civil Procedure (Amendment No 5) Rules 2014 (which came into force on 5th June 2014) was passed, statutorily allowing parties to agree extensions of time up to 28 days without the need for permission from the court. The agreement must be made in writing before expiry of the particular deadline.
Lord Jackson’s judgement suggests he knew the enactment was on the cards and he was using this as an opportunity to set out his position on the reform.
The Buffer rules will greatly assist the parties and the court in dealing with sensible extensions by consent and will hopefully help to dilute the Mitchell madness by getting litigators back to cooperating with one another again.