‘Buffer’ direction “does not blow Jackson/Mitchell principles off-course”

Denyer: Jackson/Mitchell principles still in place

A change to the standard directions that would allow parties to agree a 28-day extension to time limits without the need for court approval would not signal the major policy change that some claimant lawyers think it will, a leading defendant lawyer has argued.

It emerged earlier this month that the move has already been made to the clinical negligence model direction used by the Queen’s Bench Masters, as well as to the specialist asbestos list (although the extension there is for 21 days).

The Civil Procedure Rule Committee is currently considering whether it should be a general change to model or standard directions.

Simon Denyer, strategic legal development partner within the insurance practice group at national firm DWF, said that while this decision is awaited, “these buffer orders are starting to be used by judges up and down the land” and could become the norm.

The reason for the change, he said, is the “simple fact” that judges think that they will be able to get on with their workloads better if they are not side-tracked by regular applications from litigants concerned by the Mitchell judgment who want to put back the time for witness statement exchange or expert evidence exchange, and recognise that they now need court approval to do this.

Mr Denyer continued: “What this news is not however is ‘a major policy change and a major blow to the Jackson/Mitchell courts’ as has been claimed in some claimant quarters. Those ‘Jackson/Mitchell principles’, which in turn lead to the need for careful procedural planning in all cases, remain in place.

“The challenges and opportunities which Mitchell gives rise to remain intact, and it will be a failure of planning to think that this news leads us to any other position. If claimant commentators think that there will be any indirect softening of the Jackson approach as a result of this news, then we will have to await any evidence of that.”

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