Buying time – when can parties agree to delay?

The courts used to be unconcerned about delays agreed by the parties but this changed with the Jackson reforms in 2013. We review the complex web of rules permitting parties to agree extensions of time in some circumstances.

The Jackson reforms challenged a perceived culture of delay and non-compliance by amending the Civil Procedure Rules (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.

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 set out their particulars of 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 Stone, Coulson J (then in the Technology and Construction Court and now in the Court of Appeal) 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 (but not usual) to obtain a stay from the court after issue and before service of the claim form – see Grant v Dawn Meats (UK). Parties may alternatively 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’s important to think about the wording of any agreement or consent order where service of a claim form is concerned and to specify whether the deadline is to be interpreted in accordance with CPR 7.5 or not (see Oran Environmental Solutions Ltd v QBE Insurance (Europe) Ltd).

Stay of proceedings after service of the claim form

The recommended course is to issue and serve the claim form and then 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 more usual in these circumstances to avoid involving the court by agreeing 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

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) and extensions of time for particulars of claim and defence. 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.

General point about time limits under the CPR

When calculating time and working out whether you need an extension of time, you should check CPR 2.8 and the examples given in the rule. Days should be calculated as “clear days” as defined in CPR 2.8 where the period in question ends with an event such as a CMC. You should also be aware of the deemed service rules for documents other than claim forms in CPR 6.26. Weekends and bank holidays are only excluded where the the specified period is 5 days or less.

Buffer orders

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. 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.

Service of the defence

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.

Costs budget Precedent H

CPR 3.13 specifies a 21 day time period for filing and exchanging a costs budget before the first case management conference (CMC) where the claim is for £50,000 or more. If a party fails to meet this deadline, CPR 3.14 states that they will be treated as having filed a budget comprising only the applicable court fees. It’s not clear whether it is possible for the parties to agree a short extension under CPR 3.8(4) but there’s unlikely to be a problem as long as it will not affect the parties’ ability to keep to the timetable for discussion, agreeing and filing Precedent R (budget discussion report) no later than 7 days before the CMC.

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. 

Some other general restrictions can be found in CPR 26.3 (date for filing a directions questionnaire) and CPR 29.5 (date for a CMC, pre-trial review, pre-trial checklist, the trial or trial period or any date impinging on these dates). 

Although CPR 26.3(6A) states that the date for complying with a notice of proposed allocation may not be varied by agreement between the parties, the Chancery Division allows the parties to agree to extend the time limit given in Form N149C (notice of allocation to the multi-track) for filing a Directions Questionnaire (DQ) for up to 28 days but requires them to notify the court in writing of the expiry date of any extension. If all parties wish the claim to be stayed a longer period in order to attempt ADR, a consent order should be filed (paragraph 15.35 of the Chancery Guide – see also CPR 26.4 which allows the parties to request a month’s stay when they file their DQs).

The court’s permission is required in some instances for an extension of time for service of third party claims and contribution notices (see CPR 20.6 and CPR 20.7).

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) and paying the court fee of £108. 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.

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