Court of Appeal clarifies position on extensions of time (Hallam Estates v Baker)

The Court of Appeal, with Lord Justice Jackson giving judgment, has upheld a costs judge decision to allow a reasonable extension of time for service of points of dispute. Hallam Estates v Baker [2014] EWCA Civ 661.

In doing so, Lord Justice Jackson emphasised the need for parties to take a more pragmatic approach in ensuring compliance with the overriding objective and that where a reasonable extension of time was sought ie one that would not impact on the progress of the proceedings it should be considered by the parties. This would have a less detrimental effect then the time and costs associated with a contested hearing. He noted that this position is to be reinforced by the introduction of the new provisions in CPR 3.8 on 5 June 2014 which introduce the so called ‘buffer agreements’ enabling parties to agree up to a 28 day extension of time.

Practical implications

This is an important decision for practitioners. Since the introduction of the Jackson Reforms there has been concern amongst practitioners as to the impact of many of the reforms and there have been a large number of cases brought in which a party has been forced by the other party to seek relief from sanctions, the most well known perhaps being the Mitchell proceedings. Most of these cases have involved some timing element.The difficulty for practitioners has been in understanding the application of the new provisions when seeking an extension of time.

This Court of Appeal decision clearly sets out the difference between an extension of time application and the requirement for a relief from sanctions application.

As Jackson LJ makes very clear, an application for an extension of time to undertake a step in the proceedings is not an application for relief from sanctions if the application notice for the extension of time is made within the relevant time period. In this case it was and therefore the court was dealing with a straight forward application for an extension of time under CPR 3.1(2)(a); relief from sanctions provisions were therefore not applicable.

Despite the straight forward nature of the request, which Lord Justice Jackson deemed to be reasonable, the request was considered by a costs master (allowed), a costs judge (allowed), a High Court judge (not allowed) and finally the Court of Appeal (allowed). That such a simple request for an extension of time can involve four different judges together with the time and costs implications not only to the parties but also the courts shows just how difficult practitioners and judges have found implementing the new reforms.

The following helpful clarifications were made in the judgment:

  • the requirement for an application to be made in time is for the party to have filed and paid for the application in time. Importantly, Jackson LJ emphasised that despite the recent civil justice reforms the following will not be seen by the courts as taking the application outside the time limit:
    • the fact that the application notice is stamped by the court on a later date where that later date would render the application out of time (CPR 23.5)
    • the fact that the application is heard after the expiry of time period for bringing the application (Momentum Services, CA)
  • Jackson LJ took the opportunity to emphasis that when dealing with the recent civil justice reforms he had not recommended that parties should not agree sensible extensions of time ie those that do not disrupt the proceedings nor did he recommend that a court should refuse to grant reasonable extensions of time. He also did not consider that the new provision in CPR 1.1(2)(f) not a recommendation he had made, made provision for courts to refuse applications for reasonable extensions of time

Jackson LJ also took the opportunity in this judgment to address the issue of the amendment to CPR 3.8, which comes into force on 5 June, which will allow so called 'buffer agreements' between the parties. In doing so he highlighted the requirement of parties to assist the court in furthering the Overriding Objective, which includes ensuring that any proceedings only takes up an appropriate share of the court's time and resources.

When considering whether to use the new provisions and reach such an agreement there is a need to consider the impact of a contested application and the costs to clients of such hearings. The intention of the amended CPR 3.8 is to enable parties to agree reasonable extensions of time which do not imperil future court hearing dates or disrupt the litigation.

Factual context

This was a defamation case in which the claimants were ordered to pay the defendant's costs. There was a long delay, of over eight months, in the preparation of the bill of costs for detailed assessment and the figure was almost 20% more than had previously been indicated. The claimants sought an extension of time of 21 days for service of their response . The defendant's solicitors were unreasonable in their approach to the request and applied onerous terms to the extension of time. The claimants, as litigants in person, instead applied to the SCCO for an extension of time, the extension was granted ex parte on the papers with liberty to apply.

The defendant's solicitor sought to have the order set aside on the basis that the costs master had 'impermissibly' granted relief from sanctions. This application was dismissed on the basis that the claimants had sought an extension of time not relief from sanctions. The defendant's solicitors appealed and the appeal was allowed and a default costs certificate was entered for the full amount claimed. The claimants then appealed to the Court of Appeal.

Court details

Court: Court of Appeal on appeal from the Queen's Bench Division

Lord Justices: Lord Justice Jackson gave judgment with Lord Justice Lewison and Christopher Clarke agreeing.

Date of judgment: 19 May 2014

First published on Lexis®PSL Dispute Resolution on 20 May 2014. Click  here for a free trial of Lexis®PSL. 

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