The Civil Justice Reforms are yet to be usurped from their prominent position at the top of the legal discussions board, particularly with regard to the issue of sanctions for parties’ non-compliance with rules, practice directions and court orders.
However, lawyers have been sighing with relief since the amendments to CPR 3.8 came into effect on 5 June 2014, introducing some leeway into rigid post-Jackson procedure. The amendments were brought in by the Civil Procedure (Amendment No.5) Rules 2014 (SI 2014/1233) and now permit parties to agree an extension of time, in writing, of up to 28 days for compliance with a rule, practice direction or court order, even where the same specified an automatic sanction for non-compliance with the deadline (CPR 3.8(4)
The limitations on this are of course the maximum 28-day period for extending time but also a requirement that such agreement is not permissible where it will have the effect of jeopardising a hearing date. The rule change allows parties a small buffer zone whilst preventing the pre-2013 common practice of multiple extensions of time leading to a substantial delay in the final hearing of a case.
Previously, parties had no option (due to CPR 3.8(3)) but to apply to court for relief from sanctions when circumstances rendered a deadline unachievable. This was a rather burdensome position for both the court system and the parties and inevitably had costs consequences not intended by the Jackson Reforms. The amendment removes that obligation and encourages, once again, procedural cooperation between parties.
Interestingly, this amendment came in shortly before Lord Justice Jackson was asked to revisit the proper approach to non-compliance and sanctions in Denton v TH White Limited  EWCA 906, three conjoined appeals, in the protracted wake of the Court of Appeal decision in Mitchell. The result of the decision in Denton is that the courts, overall, should now be taking a more common sense and sympathetic approach to non-compliance with deadlines, assessing the seriousness and significance of a breach rather than giving prominence to the importance of taking a hard line with offending litigators.
Combined, the amendment to CPR 3.8 and this recent authority mark a stark change in approach generally to the Civil Justice Reforms, bringing matters back in touch with the reality of litigation and out of a punitive era where courts were under pressure to uphold a zero-tolerance line. That being said the best course is the path of complying in time with all orders of the court. If time is tight there is always the option of instructing counsel on an ad hoc basis to stick to the deadline.
© 2014 Chambers of Lawrence Power, 4 King’s Bench Walk, Temple, London, EC4Y 7DL. Tel: 020 7822 8822. www.4kbw.net