Pre Jackson and Mitchell, litigants would frequently agree to extensions of time without reference to the court. Provided the extension did not impact the trial date or any forthcoming hearing, then this was common practice and judicial eyebrows were (generally) not raised.
However, following Mitchell this is no longer the case. A failure to comply with the direction is a failure to comply, and any such extension now requires an order from the court.
Consequently there has been an enormous increase in parties making applications to extend time for compliance with directions. The courts are simply overwhelmed with these applications.
Recent whispers suggest that the judiciary is considering a softening of Mitchell by amending model directions to allow parties to agree extensions of time for up to 28 days.
Last week it was reported that the proposed change was being applied to clinical negligence cases being managed in the RCJ (by Masters Cook and Roberts) (http://www.litigationfutures.com/news/judiciary-mulls-allowing-parties-agree-time-extensions)
The clerk to the Rules Committee issued the following note.
"A draft amendment to the clinical negligence model direction used by the Queen’s Bench Masters, allowing for times set by the directions to be extended by up to 28 days by agreement, has been approved by the PQBD and Deputy Head of Civil Justice but no decision has been taken on whether there should be any general change to model directions or to standard directions under the Civil Procedure Rules. This is the subject of discussion within the Civil Procedure Rule Committee and any decision will require the approval of the Master of the Rolls.”
The new direction was reported to state:
“The parties may, by prior agreement in writing, extend the time for directions, in the order dated X, by up to 28 days and without the need to apply to court. Beyond that 28-day period, any agreed extension of time must be submitted to the court by e-mail including a brief explanation of the reasons, confirmation that it will not prejudice any hearing date and with a draft consent order in Word format. The court will then consider whether a formal application and hearing is necessary.”
A recent statement from the judiciary to this website said:
“No decision has been taken on whether there should be any general change to model directions or to standard directions under the Civil Procedure Rules. This is the subject of discussion within the Civil Procedure Rule Committee and any decision will require the approval of the Master of the Rolls.”
It seems that discussions are taking place. Whilst there is no formal amendment to the clinical negligence model directions, the new direction is being made in appropriate cases. Watch this space....