“Everybody has a plan until they get punched in the face”
So said Mike Tyson! In almost every conceivable case it would not be advisable for lawyers to heed the advice of Mr Tyson, but even a broken clock is right twice a day and Mr Tyson’s aphorism has some application to the process of litigation. The process of settlement negotiations, disclosure exercises and the taking of witness statements often gives rise to unexpected circumstances which make it desirable to vary directions given by the court.
Whilst in some circumstances all parties may agree that a variation is desirable, the Court of Appeal’s recent decisions on compliance with rules and orders (See Mitchell v News Group Newspapers  EWCA Civ 1537; Durrant v Chief Constable of Avon and Somerset Constabulary  EWCA Civ 1624; Denton v White  EWCA Civ 906) have struck fear, uncertainty and schadenfreude into the hearts of lawyers and their clients, depending on whether the court’s wrath has been directed at them or their opponents. There is accordingly a great deal of trepidation as to the variation of directions, even where the parties seek to vary directions by mutual consent. In this article, 4KBW sets out the circumstances in which directions can be varied by the agreement of the parties, and how parties should effect such variations when they agree to do so.
CPR r 2.11
The starting point is CPR r 2.11 which provides that “[u]nless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties”. Exceptions to this general rule are set out at CPR 28.4 (for the fast track) and at CPR 29.5 (for the multi-track).
CPR r 28.4 provides that a party must apply to the court if he wishes to vary the date which the court has fixed for -
(a) the return of a pre-trial check list under rule 28.5;
(b) the trial; or
(c) the trial period.
CPR r 29.5 provides that a party must apply to the court if he wishes to vary the date which the court has fixed for -
(a) a case management conference;
(b) a pre-trial review;
(c) the return of a pre-trial checklist under rule 29.6;
(d) the trial; or
(e) the trial period.
The court’s permission is required to vary dates for the above as variation of court dates can have a deleterious effect on the court and other court users. Where such dates are not affected, the parties are free to agree to vary directions, provided that the variation does not fall within CPR 3.8(3) which stipulates that -
“Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time, and
(b) specifies the consequence of failure to comply, the time for doing the act in question may not be extended by agreement between the parties except as provided in paragraph (4).”
CPR 3.8(4), referred to above, provides that
“in the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date.”
Should the parties to litigation wish to vary directions, provided they do not conflict with the provisions above, they can do so. The sole requirement under CPR 2.11 is that their agreement to vary the directions be made in writing. See:
Thomas v Home Office  EWCA Civ 1355 CA
The Court of Appeal began with the proposition that a "written agreement of the parties" would “clearly […] encompass a single document signed by both parties”. From this uncontroversial starting point, the court further developed its guidance to clarify that there were no grounds for limiting such written agreement to a single document. An exchange of letters or emails between solicitors, in which the extension of time is agreed, would be capable of constituting a written agreement.
An oral agreement subsequently confirmed in writing by both sides appeared to Neuberger L.J. to be “within the concept of a ‘written agreement’", although the oral agreement itself would not be capable of being a written agreement. The court went so far as to accept that an exchange letters between confirming had been agreed orally would amount to an agreement in writing for an extension of time (at paragraph 26). The concept of a written agreement is therefore quite wide in scope.
Perhaps the most useful aspect of the judgment were the modest observations of Jacob L.J. that “[f]irst it is always desirable that agreements between solicitors be reduced to writing […]” and “[s]econd, when agreements (or court orders) about the date by which a thing is to be done are made, it is always better to specify that date precisely rather than by reference to a period such a week or a month.” If parties to litigation have in mind these unoppressive and pragmatic principles, they will not err in successfully varying directions in agreement with other parties.
First and foremost try and try again to stick to deadlines. We have written about this on a number of occasions and say it is the best practice solution. If needs be engage counsel to help you out.
Be aware parties can vary directions by written agreement unless certain key dates will be affected. Where there are specified consequence for failure to comply with a direction, the time for doing the act in question may not be extended by agreement between the parties by more than 28 days.
© 2014 Chambers of Lawrence Power, 4 King’s Bench Walk, Temple, London, EC4Y 7DL. Tel: 020 7822 8822. www.4kbw.net