Can we really not agree to additional time to negotiate?

22 November, 2019

I recently posted a blog on the court’s first instance decision in Cowan v Foreman & Ors [2019], in which Mr Justice Mostyn heavily discouraged the use of agreements to “stand still agreements” in 1975 Act claims (or, more specifically, agreements that no party would object to issuing the claim outside of the 6 month period). Mr Mostyn took the view that the claim in question did not have strong prospects of success and, despite evidence of such an agreement, dismissed the application.

The matter was reconsidered and reversed by the Court of Appeal. The first instance judge was considered to have erred in making the finding that there were no real prospects of success and, while it remains at the court’s discretion whether to extend the 6 month period for issuing a claim, Lady Justice Asplin emphasised that without prejudice negotiations should be encouraged. She made clear that “although the potential claimant will have to take a risk if an application is made subsequently to extend time in circumstances where negotiations have failed, if both parties have been legally represented, it seems… that it would be unlikely that the court would refuse to endorse the approach”.

While this is very helpful guidance, particularly considering the confusion that followed from the first instance decision, any party considering how best to proceed in similar circumstances should be seeking legal advice at the earliest opportunity.

If you have any queries in respect of the above please contact Dino Sikkel on