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Recommendation 57: Where all the parties agree to a variation of time-limits
for non-milestone events in the timetable, they may effect such variations by
recording the agreement in counter-signed correspondence to be filed as a
matter of record with the court, provided that the agreed variations do not
involve or necessitate changes to any milestone date.
As will be apparent from the foregoing discussion of milestone dates, the milestone
which is fundamental to the entire timetable is the trial date (and the trial period prior
to fixing the trial date). While the dates set for the case management conference (if
any) and for the pre-trial review are milestones and are dates which should generally
not be subject to change, it is not intended that at those hearings, the court should
rigidly refuse extensions of time to parties who have missed time-limits expiring prior
to such hearings if prompt compliance is shown to be possible. Provided that a party
satisfies the court that it would be able to comply with an extension without impinging
on the trial date, the court would normally be prepared to grant such an extension on
suitably stringent terms.
Accordingly, where agreement cannot be reached between the parties for extension of
an intermediate time-limit, the party seeking a time-extension would have to apply to
the court for the necessary indulgence, having done everything possible to show that
he would be able to comply swiftly and that an extension would not threaten the trial
date. A practice direction should make it clear that such applications will not be
granted as a matter of course, but only on sufficient grounds being shown and only
granted, if at all, on the basis of an immediate "unless order" prescribing a suitable
automatic sanction
should there be any further non-compliance, always providing
that full compliance can realistically be achieved without threatening the trial date.
Notes
It is desirable, whether or not strictly necessary, to spell out the court's power to make orders with
automatic sanctions along the lines of CPR 3.1(3)(b) and CPR 3.8. See Recommendations 83 and 84.
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