High Court warns parties not to try their luck with stricter approach to compliance

Document dIsclosure: extension sought

It would be “unfortunate” if the stricter post-Jackson approach to compliance with orders should encourage parties to refuse reasonable requests for time extensions in the hope that the court might refuse any extension at all, the High Court has said.

Mr Justice Henderson said there are some orders relating to the completion of specified stages in preparation for trial where the date for compliance cannot sensibly be regarded as “written in stone”.

He gave examples such as disclosure, the exchange of witness statements and a timetable for expert evidence.

He was ruling on an application to extend the time for a complicated disclosure exercise in In the matter of Atrium Training Services [2013] EWHC 1562 (Ch), and decided that on the facts the party seeking the extension should be granted it.

The judge had been referred to the new overriding objective, the speech of the Master of the Rolls on courts taking a stricter approach to compliance after 1 April, and the recent cases of Fons and Venulum, in which other High Court judges indicated a tougher stance.

Henderson J ruled that in this case, because the application for extension had been made before the expiration of the existing deadline, it was not an application for relief from sanctions under CPR 3.9.

He said: “It is no doubt the case that the court will scrutinise an application for an extension more rigorously than it might have done before 1 April, and that it must firmly discourage any easy assumption that an extension of time will be granted if it would not involve any obvious prejudice to the other side.

“On the other hand, I think it is important not to go to the other extreme, and not to encourage unreasonable opposition to extensions which are applied for in time and which involve no significant fresh prejudice to the other parties.”

He said that in such cases, considerations of cost and proportionality are highly relevant, and the wider interests of justice are likely to be served by a sensible agreement, or a short unopposed hearing, than by the parties adopting entrenched positions and spending a lot of money and court time over an application that could have been avoided.

Henderson J continued: “I would also observe that, although all court orders mean what they say, and must be complied with even if made by consent, there are some orders relating to the completion of specified stages in preparation for trial… where they may still be so many imponderables when the order is made that the date for compliance cannot sensibly be regarded as written in stone.

“Everything will always depend on the circumstances of the particular case, and the stage in the proceedings when the order is made, but in many cases it should be understood that there may be a case for reasonable extensions of time or other adjustments as the matter develops.

“It would, I think, be unfortunate if the new and salutary emphasis on compliance with orders were to lead to a situation where, in cases of the general type I have described, a reasonable request for an extension were to be rejected in the hope that the court might be persuaded to refuse any extension at all.”