In almost every litigated case the parties usually find themselves needing to vary the dates of some directions. This can be done by way of written agreement between the parties and is allowed by CPR 2.11.
However, if you thought that CPR 2.11 allowed parties to extend time for witness statements by written agreement between themselves (assuming this agreement is reached made before the deadline expires) then you will have to think again.
In a judgment of Mr Justice Turner on Monday (20 January 2014), the High Court has said that an extension of time for service of witness statements agreed between the parties is not effective without approval of the court. The Mitchell sanction spotlight is shone on the interplay between CPR 3.8(3) and CPR 32.10 – the combination of which effectively trumps CPR 2.11.
The case is MA Lloyd & Sons Ltd v PPC International Ltd  EWHC 41 (QB).
The crucial paragraphs are 26 and 27 of the judgment. Mr Justice Turner said:
26. CPR 3.8(3) provides:
"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
27. CPR 32.10 specifies the consequences of failure to serve a witness statement. It follows that even if the parties had purported to reach a concluded agreement on an extension of time this would not have been effective unless the court were to be persuaded formally to endorse it. This court is under a duty under CPR 1.4 not simply to adjudicate passively upon the applications of the parties or to rubber stamp their reciprocal procedural indulgences but actively to manage cases. To this end, the court has power under CPR 3.3 to make orders of its own initiative.
So the best advice should be that if even if there is an agreement to extend time for service of witness statements (now likely to be rarer than a flying unicorn) the procedure in PD 29.6.5(1)(a) and (b) should be followed which is:
- The parties must apply for an order by consent
- The parties must file a draft of the order sought and an agreed statement of the reasons why the variation is sought.
The court then may make an order in the agreed terms or in other terms without a hearing, but it may direct that a hearing is to be listed. Mr Justice Turner indicates that this will not be a rubber stamping exercise.
Unfortunately, this is another example of a post-Mitchell world being one where co-operation between parties is likely to be a thing of the past. If an application is going to have to be made in any event, defaulting parties are going to find their opponents will stick their heels in and refuse to agree minor variations of the timetable.
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