200512-time-limits-presentation-notes 21.54.22€¦ · goldsmith chambers . goldsmith chambers ....
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TIME LIM
ITS IN TH
E AG
E OF C
OV
ID-19
Limita
tion &
Ap
plic
atio
ns for re
lief fro
m sa
nctio
ns
LIMITA
TION
uThe
re is no
help
forthc
om
ing fro
m the
Co
rona
virus A
ct 2020 no
r the C
ivil Proc
ed
ure Rule
s am
end
me
nts in Pra
ctic
e D
irec
tions 51Y, 51Z a
nd 51ZA
uC
laim
ants a
re still e
xpe
cte
d to
co
mp
ly with the
re
leva
nt limita
tion p
erio
d
uSo
, wha
t ca
n be
do
ne to
ove
rco
me
inevita
ble
p
rob
lem
s?
uThe
re a
re fo
ur po
ssible
ap
pro
ac
hes
Limita
tion Am
nesty
uThe first approach is to seek to agree a lim
itation amnesty
uSuch agreem
ent has to be prospective-you need to id
entify potential issues early
uPotential d
anger areas:u
It should
be
cle
ar a
nd in w
riting
uThe
exte
nsion p
erio
d ne
ed
s to b
e c
lea
r and
pre
cise
uM
ake
sure the
am
nesty is a
gre
ed
with a
llpo
tentia
l de
fend
ants
uIf the
ag
ree
me
nt allo
ws the
De
fend
ant to
revo
ke the
am
nesty up
on g
iving
notic
e, c
onsid
er c
are
fully wha
t that no
tice
pe
riod
nee
ds to
be
and
how
it is to
be
co
mm
unica
ted
Extend the tim
e for service of the cla
im form
uThe second
approach is to issue, then apply for an extension of time to
serve the claim form
uD
angerous, given the amount of tim
e it may take to get such an
application heard
uD
efendants can apply to set asid
e such an order
uC
ourts frequently do set asid
e such orders unless there is a good
reason for the inability to serve in tim
e
Agreem
ent to extend tim
e for service of the cla
im form
uThird
ly you can seek an agreement to extend
the time for service rather
than applying to the court
uSim
ilar points apply as for a limitation am
nesty-ensure the agreement is
prospective, in writing and
clearly drafted
Apply to extend
the time for service of
the Particula
rs of Cla
im
uThe fourth approach is to serve the claim
form and
then apply for an extension of the tim
e to serve the particulars of claim prospectively
uThe application has to be w
ithin the standard
4 months for service
uThe ad
vantage is that when consid
ering any prejudice, the only prejud
ice the court w
ill consider is that resulting
from the g
rant of the extension of
time itself (Rob
ert v Mom
entum Services Ltd
)
uA
s such, it will be very d
ifficult for the Defend
ant to resist such an extension
Key points to take a
wa
y
uLim
itation periods still apply
uA
s soon as it becomes apparent that there are going to be problem
s, proactively consid
ering how to d
eal with them
will save a lot of pain later
on
uExtension by agreem
ent should alw
ays be the first approach. Given the
current pressure on the courts, unreasonable refusal that results in an application to the court is likely to have ad
verse costs consequences
uEnsure that any extension by agreem
ent is prospective, in writing and
precise about d
ates
Relief from sa
nctions
uThere are yet to be any reported
cases dealing w
ith relief from sanctions in
the context of Covid
-19
uW
e can however obtain som
e guidance from
CPR PD
51ZA and
reported
cases on adjournm
ents and applications to extend
time as to how
the courts are likely to d
eal with them
Practice D
irection 51ZA
uC
PR PD51ZA
(4) states that: u
“In so fa
r as c
om
pa
tible
with the
pro
pe
r ad
ministra
tion o
f justice
, the c
ourt w
ill ta
ke into
ac
co
unt the im
pa
ct o
f the C
ovid
-19 pa
nde
mic
whe
n co
nside
ring
ap
plic
atio
ns for the
exte
nsion o
f time
for c
om
plia
nce
with d
irec
tions, the
a
djo
urnme
nt of he
aring
s and
ap
plic
atio
ns for re
lief fro
m sa
nctio
ns.”
Heineken Sup
ply C
hain BV
uD
eputy High Court Jud
ge Alexand
er QC
had to consid
er timetabling and
w
hether a trial should be postponed
in a patent claimu
He acknowled
ged that the pand
emic had
required ind
ividuals to re-
organize aspects of their personal and professional lives and
that preparing d
ocuments and
evidence had
been mad
e harder
uHe criticized
the lack of detail in the evid
ence as to the problems caused
by the d
isruption u
He noted the efforts of other professionals at the current tim
e and stated
that it w
as ”not unreasona
ble to exp
ect that la
wyers concerned
with
keeping
cases on tra
ck ma
y need on occa
sion to push a
little hard
er to ena
ble tha
t to be a
chieved”
Municip
od
e Ma
rina v BH
P Group
uThis case follow
ed H
eineken, and HHJ Eyre Q
C set out 9 principles to guid
e the courts w
hen considering an application to extend
time for com
pliance w
ith directions or for the ad
journment of hearings:
uExisting
de
ad
lines sho
uld b
e ke
pt to
if ac
hieva
ble
and
any e
xtensio
n should
be
fo
r as sho
rt as re
aso
nab
ly pra
ctic
ab
le
uLe
ga
l pro
fessio
nals w
ill be
exp
ec
ted
to use
tec
hnolo
gy to
ove
rco
me
pro
ble
ms
with re
mo
te w
orking
uLe
ga
l pro
fessio
nals w
ill be
exp
ec
ted
to g
o furthe
r than m
ight p
revio
usly have
b
ee
n exp
ec
ted
, pa
rticula
rly whe
re a
failure
to m
ee
t a d
ea
dline
will je
op
ard
isea
tria
l da
te
uExp
ert w
itnesse
s will b
e e
xpe
cte
d to
do
likew
ise
Municip
od
e Ma
rina v BH
P Group
uThe
co
urts should
be
willing
to a
cc
ep
t evid
enc
e tha
t is less p
olishe
d a
nd
foc
used
than usua
l if nec
essa
ry to m
ee
t a d
ea
dline
uThe
co
urt should
take
ac
co
unt of the
rea
lities o
f the situa
tion a
nd a
void
re
quiring
co
mp
lianc
e w
ith de
ad
lines w
hich a
re no
t ac
hieva
ble
eve
n with
“pro
pe
r effo
rt”
uThe
co
urt must ha
ve re
ga
rd to
the c
onse
que
nce
s of m
ove
me
nt restric
tions a
nd
wo
rking fro
m ho
me
, includ
e it se
t-ups a
nd o
ther re
spo
nsibilitie
s such a
s c
hildc
are
and
supp
orting
vulnera
ble
pe
rsons
uA
n exte
nsion o
f time
that w
ill req
uire the
loss o
f a tria
l da
te w
ill be
gra
nted
less
rea
dily tha
n one
that d
oe
s not
Key points to take a
wa
y
uRe
ferring
to C
ovid
-19 alo
ne is unlike
ly to a
ct a
s a m
ag
ic b
ullet in a
pp
lica
tions
for re
lief fro
m sa
nctio
ns
uA
refe
renc
e to
Co
vid-19 b
ac
ked
up b
y a d
eta
iled
exp
lana
tion o
f the p
rob
lem
s c
ause
d is ho
we
ver like
ly to sa
tisfy the ‘g
oo
d re
aso
n’ test
uA
cle
ar tim
eline
is likely to
be
off a
ssistanc
e-the
co
urts are
mo
re like
ly to b
e
symp
athe
tic to
pro
ble
ms c
ause
d b
y disrup
tion a
t the sta
rt of the
loc
kdo
wn
than la
ter o
n
uIssue
s ab
out the
ava
ilab
ility of sta
ff due
to furlo
ugh a
re like
ly to o
nly go
so fa
r, firm
s will b
e e
xpe
cte
d to
have
kep
t on e
noug
h staff to
me
et p
rofe
ssiona
l o
blig
atio
ns
uIf the
re w
as a
n issue d
ue to
the he
alth o
f a w
itness o
r solic
itor, o
bta
in the
evid
enc
e in g
oo
d tim
e
Conta
ct Deta
ils
uA
ny Questions?
uTHA
NK YO
U
To instruc
t co
unsel p
lea
se c
onta
ct:
B.Cre
ssey@
go
ldsm
ithcha
mb
ers.c
om
Clerks: Ben C
ressey & A
lice Martin
Tel: 0207 353 6802
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