Agreeing extension of time for witness statements

4 February, 2014
by: Cripps Pemberton Greenish

It is common, when litigating, to find that you need to vary the directions timetable.  If the other side agrees, this can be done by way of written agreement between the parties unless a CPR rule, practice direction or court order provides otherwise (CPR r. 2.11).

Does this apply to exchange of witness statements?  Whether or not it does, it has been common for parties to agree extensions for exchange of witness statements that do not interfere with the timetable for any hearings.  It is time to think again about that practice.

MA Lloyd & Sons Ltd v PPC International Ltd [2014] EWHC 41 (QBD)

In the High Court on 20 January 2014, Mr Justice Turner confirmed that an extension of time for service of witness statements agreed between the parties is not effective without approval of the court. 
The inference from the judge’s comments, and from other post-Jackson/post-Mitchell decisions, is that if the other side asks you to agree to an extension or other ‘indulgence’, think twice.  You need the court’s approval.
The old regime did not favour technical point-scoring and trips to court where agreeing to the request would cause no prejudice to the other party.  Under the new regime a more robust approach seems to be encouraged.
For those situations where a constructive and co-operative approach was being taken by the parties, the result may be increased costs and more court applications seem inevitable.
See judgment here: