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Clarification has finally been provided by the courts on the requirements relating to extensions of time for Points of Dispute. In the recent case of Hallam Estates -v- Baker  EWCA Civ 661, Lord Justice Jackson himself got the chance to give his views on this issue.
The Claimants in this case lost their claim and were presented with the Defendant’s Bill of Costs in April 2013, eight months out of time. Their request for an extension of time to file Points of Dispute was refused by the Defendant and they therefore applied to the court, the application being made within the 21 day limit though it wasn’t issued until the following day, outside the time limit. An extension was granted by the court, ex parte, and Points of Dispute were filed within the extension. In the interim, the Defendant applied for the order to be set aside and for a Default Costs Certificate (DCC), the application being dismissed by the SCCO.
The Defendant therefore appealed to the High Court, claiming material non-disclosure on the part of the Claimants and alleging that they should have sought relief from sanctions rather than just applying for an extension.
The High Court found that the non-disclosure itself placed the order at risk, and that as the application was made out of time, the Claimants should have been seeking relief from sanctions. The Defendant’s Appeal was allowed and a DCC granted.
Unsurprisingly, the Claimants then appealed, the judgment being given by LJ Jackson. By this stage, the Defendant had abandoned the allegation of non-disclosure, the matter proceeding therefore on the issue of extension/relief from sanctions and whether the DCC was properly granted. The Court found that the application had been made on time and therefore had been correctly treated as an application for an extension of time, even though it was heard outside of the three week period. As such, it did not fall within the Mitchell criteria and had therefore been properly granted by the Court. The Claimants’ appeal was therefore allowed, and the DCC was set aside, the DCC having been improperly granted in any event as Points of Dispute had been served (CPR 47.9(5)).
However, more importantly, guidance was given by LLJ Jackson as follows:
“The court should be less tolerant than hitherto of unjustified delays and breaches of orders. Nevertheless it was no part of my recommendations that parties should refrain from agreeing reasonable extensions of time, which neither imperil hearing dates nor otherwise disrupt the proceedings. The contrary is the case, as explained in paragraphs 11 and 12 above. Nor was it any part of my recommendations that the court should refuse to grant reasonable extensions of time in those circumstances.”
Extensions of time for filing Points of Dispute fall within CPR 3.8 (3), and therefore require approval by the court, though this approval would have been a formality. This is frequently forgotten by costs practitioners, who often agree such extensions without court approval.
From 5 June 2014, the amended 3.8 (4) allows for extensions of up to 28 days to be agreed between the parties, “provided always that any such extension does not put at risk any hearing date”. There will not ordinarily be any relevant hearing date at the points of dispute stage. It is also worth remembering that the position is asymmetrical – the deadline for replies to points of dispute is not caught by 3.8 (3) because no consequences are specified. The parties can therefore agree extensions as they see fit pursuant to CPR 2.11.