Case Update: M A Lloyd & Sons Ltd v PPC International Ltd [2014] EWCH 41 (QB)

Facts

This was a claim in respect of alleged breaches of a confidentiality agreement and passing off. On 11th October 2013, Walker J ordered the Claimant to file a witness statement dealing with matters of fact and a skeleton argument dealing with matters of law by no later than 4pm on 25th October 2013. The Defendant was then ordered to file their witness statement and skeleton argument by no later than 4pm on 29th November 2013.

The Claimant failed to file or serve any witness evidence or skeleton arguments in accordance with the order. The Defendant later made an application for an extension of time to comply with the second part of the order affecting them.

On the day of the application the Claimant’s solicitors prepared a Consent Order with a revised timetable, this was placed before the Court.

Judgment

Turner J refused to extend the time for service of the Claimant’s witness evidence and made an order debarring the claimant from filing a witness statement.

CPR 3.8(3) provides:

“Where a rule, practice direction or Court Order-

  1. requires a party to do something within a specified time; and

  2. specifies the consequences of failure to comply,the time for doing the act in question may not be extended by agreement between the parties.”

CPR 32.10 specifies the consequences of failing to serve a witness statement i.e. “the witness may not be called to give oral evidence unless the Court gives permission”.

It therefore follows that even if the parties had purported to agree an extension of time this would not have been effective without formal endorsement from the Court. To this end, the Court has power under CPR .3.3 to make orders of its own initiative.

Turner J made reference to the Judgment in Mitchell and found that the Claimant’s breach was not trivial and the reason given for the breach was not a good one.

He also criticised the Defendant’s approach who should have made an application to the Court specifically in respect of the Claimant’s default in complying with the order of Walker J rather than an application for the Defendant to comply with the order.

Comments

The position is clear where CPR3.8(3) applies. If an extension of time is required, an application to vary must be made promptly before the deadline expires and the Court’s approval must be sought. The Court may then make an order in the agreed terms or in other terms with or without a hearing.

Alex Banks

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