COVID-19 UK: Litigation – Will English courts take a flexible approach to litigation time limits during the COVID-19 outbreak? – Update

March.27.2020

UPDATE: Please see our alert regarding further rule changes:

On 23 March 2020, the UK Supreme Court (UKSC) published the following update concerning time limits and extensions of time during the COVID-19 outbreak:

  • Time limits in UKSC and Judicial Committee of the Privy Council cases will be applied flexibly, and parties should avoid unnecessary disputes over procedural matters in accordance with the 'overriding objective' of the Civil Procedure Rules.
  • Parties will not need to make a formal application to the court for an extension of time for any period of less than three weeks. Instead, they should email the court registry with details, copying all other parties. However, if the application relates to a hearing which is listed in the next six weeks, a formal application will be required. 

So far, there has been no announcement as to whether the lower courts of England and Wales will take a similarly flexible approach to deadlines. The current guidance from the Law Society of England and Wales is that litigants who are having trouble meeting a pending court deadline will need to make an application to the court in the normal way.

There is some scope in the Civil Procedure Rules for parties to extend time limits by written agreement, without a formal application to the court. However, parties' ability to extend a time limit by prior written agreement is in most cases capped at 28 days and is subject to the requirement that the proposed extension does not put any hearing date at risk. Parties will need to obtain court approval for any longer extension, although this may be done by consent order.  

Some legal practitioners have raised concerns that high numbers of applications to vary time limits could place a further burden on the courts' resources, at a time when they are already dealing with the significant challenges of the COVID-19 outbreak. It is possible that emergency amendments to the Civil Procedure Rules could be made over the coming days to address this.

In the meantime, some parties may want to consider making a pre-emptive application asking the court to exercise its case management powers to give greater flexibility. One such order is reported to have been made last week inO’Driscoll -v- F.I.V.E Bianchi S.P.A. The High Court granted the claimant’s request for permission for the parties to agree extensions of time for up to 56 days, without further order from the court. However, an order of this kind is unlikely to be appropriate in all cases, especially if it would jeopardise an existing hearing date.

Finally, parties who refuse reasonable requests for time extensions may potentially face sanctions including costs penalties. Given the widespread disruption caused to businesses and individuals as a result of COVID-19, it will be particularly important at the present time to give careful consideration to any extension request by an opponent.