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'Unintended pitfalls of Practice Direction 51ZA: Extending time during the impact of Covid-19' by Charlotte Davies

28th April 2020

Unintended pitfalls of Practice Direction 51ZA: Extending time during the impact of Covid-19

Civil and commercial barrister Charlotte Davies (2007) outlines the changes to the Civil Procedure Rules regarding extensions to procedural timetables made as a result of Covid-19, and highlights a number of unintended consequences.

The General Position

Under the Civil Procedure Rules there are some deadlines that can never be extended by agreement between the parties, and some that can be extended by agreement for an indefinite period (CPR 2.11). 

In a third set of circumstances – where an express or implied sanction is attached to a court procedural deadline – the parties can agree to extend the deadline, but only if it has not already been extended, and provided that the extension will not put a hearing date at risk (CPR 3.8).  On these conditions, an extension of up to 28 days can be agreed.  If further time is needed, the party that requires the extension must apply for this from the court.

What has changed?

As a result of the impact of Covid-19 on the ability of litigants and legal representatives to meet court deadlines, Practice Direction 51ZA came into force on 2 April 2020 and its provisions will remain in place until at least 30 October 2020.

The Practice Direction gives parties the freedom to agree longer time extensions in certain circumstances. In particular, parties can now agree to extend time under CPR 3.8 by up to 56 days rather than 28 days. However, and probably unintentionally, if we are the take the provisions literally, they also apply to time extensions of the general kind – those agreed under CPR 2.11 – meaning that whereas previously extensions could be agreed for an indefinite period, these extensions are now also subject to a maximum period of 56 days. 

Does the 28 day time limit for filing Defences remain?

A further unintended quirk of Practice Direction 51ZA is that the specific rule that applies to filing a defence has not been changed. As such, it appears to remain the case that although parties can agree to extend the time for filing, this is only by 28 days and no further (CPR 15.5(1)). 

The reason for this is because paragraph 3 of the new Practice Direction states that "any extension of time… beyond 56 days requires the permission of the court."  What it does not say is that any time extension for fewer than 56 days does not require the court's permission. It therefore appears that the 28 day limit regarding the filing of defences still stands. 

Given the impact of the disruption caused by Covid-19 this particular irregularity is unfortunate given the intentions behind the implementation of the new Practice Direction. Defendants have less time than claimants to put together a case, and now remain tied to a procedural deadline to put together the Defence which is likely to include attempting to collate and review evidence, liaise with witnesses, and take advice from Counsel and possibly experts – all during the Covid-19 lockdown and social distancing requirements.

Applications for extensions

Where the parties are unable to agree an extension, or more time is needed than the parties may agree between them, the courts will initially deal with applications for an extension "on the papers" alone (paragraph 3).  However, any order that the court then makes "must, on application, be reconsidered at a hearing".  It may be that a hearing can be organised relatively quickly given the video link / telephone hearing revolution foisted upon the court system (Practice Direction 51Y), but some courts have not adapted as well as others. As such, whether a party is able to get such an application heard promptly may be somewhat of a postcode lottery.

Paragraph 4 reads: "In so far as compatible with the proper administration of justice, the court will take into account the impact of the Covid-19 pandemic when considering applications for the extension of time for compliance with directions, the adjournment of hearings, and applications for relief from sanctions". It is therefore clear that the spirit of the Practice Direction is for courts to be as flexible as they can.

Conclusion

Practice Direction 51ZA is one of a number of changes implemented to assist both litigants and legal representatives during the impact of Covid-19. Practice Direction 51Y mentioned above relates to video and telephone hearings, and Practice Direction 51Z stays certain types of possession hearings. Depending on how long the current situation persists, more changes may be necessary.

If you wish to discuss this, or any other case with Charlotte, please contact her clerk Jamie Kyte on 01752 221551 or jamie@kbgchambers.co.uk

 

Charlotte Davies

cdavies@kbgchambers.co.uk

April 2020

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'Unintended pitfalls of Practice Direction 51ZA: Extending time during the impact of Covid-19' by Charlotte Davies