Buying time – when can parties agree to delay?

Published on
7 min read

Before the introduction of the Civil Procedure Rules, the courts were not perceptibly concerned about delay agreed to by the parties.

In 2013 the mood changed and the Jackson reforms challenged a perceived culture of delay and non-compliance by amending the CPR to make relief harder to obtain where parties had missed court deadlines. 

Since then, an increasing shortage of judges and court funding has led to a robust attitude from the judiciary. Necessity requires them to use their case management powers to ration valuable court time in the name of the overriding objective set out in CPR 1.1. As well as requiring them to deal with cases justly and at proportionate cost, the overriding objective expressly refers to expedition.

In Cowan v Foreman, the Court of Appeal noted the problems caused by stale claims and the fact that the approach to time limits in the context of the CPR has become more stringent. Once commenced, litigation should proceed expeditiously and at proportionate cost so that court resources are not wasted.

The court has a general power to extend or shorten time under CPR 3.1(2)(a). Other rules permit parties to agree to extend time limits in certain circumstances. We discuss these rules below and review the ways in which the parties can agree to delay at different points during general multi-track litigation under the CPR.

Before proceedings are begun

It is common practice for claimants coming up to the end of a limitation period to try and buy time before having to pay the court issue fee and plead the claim. They can do this by agreeing a standstill agreement with the defendant. These agreements come in many forms, some extending and others suspending the limitation period. Problems can and do quite frequently arise, for example where the agreement is made with the wrong party or where there is disagreement over the scope and effect of the standstill.

In Russell v Jones, Coulson J, then in the Technology and Construction Court, suggested that claimants could often find it easier to forget about standstill agreements. Instead they should begin proceedings and then ask for a stay of six months or so to follow the pre-action protocol process.

After issue of proceedings but before service of the claim form

It is possible to obtain a stay after issue and before service of the claim form – see Grant v Dawn Meats (UK). Parties may also choose to agree to suspend time after issue and before service. This happened in Bethell Construction Ltd v Deloitte and Touche where the parties agreed an extension of time for service of the claim form and particulars of claim, terminable upon 14 days' written notice by either party. It ended in tears for the claimant because its solicitor forgot that he hadn’t served the claim form (he’d previously provided a copy expressly not by way of service) and proceeded to serve only the particulars of claim without giving notice in accordance with the agreement. The defendant’s solicitor spotted the error and gave notice. The claimant failed to serve the claim form within 14 days and the court held that the claim was out of time.

Stay of proceedings after service of the claim form

The recommended course is to issue and serve the claim form and for the parties to agree to ask the court to stay the proceedings. This can go wrong if the court is not involved - see UK Highways A55 Ltd v Hyder Consulting (UK) Ltd for an exampleThere is no such thing as a de facto or an implied stay (as was argued in the case) and the parties cannot impose a stay by express agreement in the absence of an order of the court. In Griffin Underwriting Ltd v Varouxakis (Free Goddess) the parties had entered into an indefinite stay at the outset of proceedings but failed to get the Commercial Court’s approval.  The agreed stay was not effective and the defendant was treated as having accepted that the court had jurisdiction.

Agreed extension of time for service of particulars

In the cases above, the parties agreed to stay the proceedings without getting the court’s approval. It is perhaps more usual in these circumstances to agree to extend the time limit for serving particulars of claim (see CPR 7.4 generally, and CPR 58.5 for Commercial Court claims).

Agreed extensions must be in writing – CPR 2.11

An extension agreed by the parties will be effective without a court order but there must be a written agreement (CPR 2.11). This can be an exchange of emails (Thomas v Home Office). It is good practice to keep the court informed about any changes to the CPR timetable. CPR 2.11 applies generally to time limits under the CPR, with some exceptions which we look at below. 

Practice in the Commercial Court

In the Commercial Court the claimant must notify the court in writing about agreed extensions under CPR 2.11, giving brief written reasons for the agreed variation (PD 58.7.1). This applies equally to buffer orders under CPR 3.8(4) – see below. PD 58.7.2 also says expressly what applies generally, namely that the court may make an order overriding an agreement by the parties varying a time limit.

Service of the defence – CPR 15.5

The parties can agree an extension of time for the defence of up to 28 days but the court’s permission is needed for a longer extension (CPR 15.5). You can’t rely on CPR 3.8(4) in these circumstances to avoid the need for obtaining permission for a further extension of up to 28 days.

Buffer orders – CPR 3.8(4)

CPR 3.8(3) says that where a rule specifies the consequences of failing to comply with a time limit, the parties cannot extend the period by agreement. This rule led to a deluge of applications for extensions after the Court of Appeal decided to take a much stricter approach to failures to comply with time limits as part of the Jackson reforms (Mitchell v News Group Newspapers Ltd). The Court of Appeal endorsed a more flexible approach to applications for relief for sanctions under CPR 3.9 subsequently in Denton v TH White Ltd.

CPR 3.8(4) was created to deal with this particular problem.  It allows parties to agree to extend time in writing in those circumstances for up to 28 days as long as a hearing date is not put at risk. (This period was extended during the Covid-19 pandemic to 56 days by PD 51ZA from 2 April to 30 October 2020.) Rather confusingly, given that the whole point is that no application or court order is required, these agreements are known as buffer orders. PD 29.6.5 says it isn’t necessary to file the written agreement with the court but the Commercial Court insists on buffer orders being filed.

Other limits on agreed extensions

There are several exceptions to the general rule in CPR 2.11 that the parties can agree to extend time for compliance with a rule or direction without applying for a court order. We have looked at CPR 15.5 and CPR 3.8(3) above. CPR 3.13 requires the court to consent to an extension of the 21 day time period for filing and exchanging a costs budget before the first case management conference. Some other general restrictions can be found in CPR 26.3 (date for filing a directions questionnaire) and CPR 29.5 (date for a case management conference, pre-trial review, pre-trial checklist, the trial or trial period or any date impinging on these dates). Less commonly encountered and for that reason sometimes overlooked, a defendant may require permission under CPR 20.6 to serve notice of an additional claim for contribution or indemnity, or under CPR 20.7 to issue a Part 20/Third Party claim form after serving a defence.

Informing the court about an agreed extension

As stated above, it is good practice in most instances to let the court know about any extension of time agreed by the parties under CPR 2.11. This is required by PD 58 in the Commercial Court and is  referred to in several court guides. And while PD 29.6.5 says it isn’t necessary to file a buffer order written agreement pursuant to CPR 3.8(4) with the court, the Commercial Court does require written confirmation of any agreed time extension.

Obtaining permission for an agreed extension

Where the court’s approval is required for any agreed extension of time, the parties need to apply for a consent order by filing a draft of the order signed by or on behalf of both parties and an agreed statement of the reasons for the extension (see PD 29.6.5 and PD 23A.10.4). The safest and proper course in this situation is also to issue an application notice (the reasons for the extension can then be given in the notice) as well as paying the court fee of £100 although anecdotal comment suggests that this may not be insisted upon in all courts in all circumstances. Certain courts have their own procedures for dealing with applications by consent so it’s best to check what is required with the court in question.

For further guidance on related topics, see our briefings Be particular about particulars and A practical guide to relief from sanctions.

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