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