CPR Part 3 amended to allow parties to agree extensions of time

The statutory instrument came into force on 5th June 2013. CPR 3.8 (3) has been amended to the following:

(3) Where a rule, practice direction or court order –

(a) requires a party to do something within a specified time, and

(b) specifies the consequence of failure to comply,

the time for doing the act in question may not be extended by agreement between the parties except as provided in paragraph (4).

(4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date.

5 points to bear in mind

1. There has to be “prior” written agreement

  • Agreement has to be made before the date for compliance.

  • Retrospective agreements are not covered.

2. The agreement has to be “in writing”

  • CA in Thomas v Home Office [2006] EWCA Civ 1355 – in this case the Claimant’s solicitor asked for an extension orally and the Defendant agreed orally. The Claimant’s solicitor then confirmed the agreement in writing. The CA held that this was not an agreement “in writing”.

  • It would appear that the extension must therefore be requested in writing and then agreed in writing by the parties to comply with the rule.

  • This can include e-mails.

3. A party with an oral agreement cannot argue their opponent is estopped from taking the point that the agreement has not been made in writing.

  • CA in Thomas mentioned in passing that an argument that a party who had orally agreed an extension was estopped from relying on the need for the agreement to be in writing.

4. A written agreement does not mean that later extensions can be agreed orally

  • This was again considered in Thomas

5. The agreement must be clear as to the date and time of the extension

  • In Thomas, Jacobs LJ stated “when agreements (or Court Orders) about the date by which a thing is to be done are made, it is always better to specify that date precisely rather than reference to a period such as a week or a month. There is always room for misunderstanding or accidentally fixing a weekend or bank holiday if time periods are used. Old hands wisely use “On or before the [blank] day of [blank].”

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