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How Long?
28 days: no, not the film directed by Danny Boyle.
28 days is the maximum time the parties can agree for an extension in relation to Points of Dispute. Is this “new” news?
Recently I have seen parties attempting to agree “general” or “rolling” extensions in relation to the time for service of Points of Dispute.
What is the legal position on this?
Under the Civil Procedural Rules 1999 a Paying Party has 21 days from service of the Bill of Costs to serve their Points of Dispute .
In relation to extensions of time, CPR r.3.8(3) and (4) currently state:
“(3) Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time, and
(b) specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties except as provided in paragraph (4).
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(4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date.”
What does that mean for Points of Dispute? Is there any caselaw on the point? Was it always like this?
There is commentary addressing the situation around Points of Dispute, the case is also repeated in the editorial note of the White Book. Within the Judgment , Lord Justice Jackson, as he then was confirmed that at the time the parties required the Court’s approval in relation to the requested extension for Points of Dispute, which in that case was 21 days.
LJ Jackson went on to state:
“By way of digression I comment that rule 3.8 will shortly be amended so that in the ordinary way parties can, without reference to the court, agree extensions of time up to 28 days, provided that this does not put at risk any hearing date.”
Whilst the above may be obiter, the commentary is clear: LJ Jackson himself recognised that the “new” CPR r.3.8(4) would only allow extensions of time for Points of Dispute up to 28 days.
By way of context, the 28-day extension period has not always been available to the parties, CPR r.3.8(4) was introduced in 2014, coming into force on 5 June 2014 . As such, CPR r3.8(4) was not available to the parties in Hallam Estates.
The why?
Put simply, the maximum period of 28 days for Points of Dispute applies because of CPR r.3.8(3); the criteria of CPR r.3.8(3)(a) and (b) are met because:
(a) CPR r47.9(2) specifies the specified time for service of Points of Dispute; and
(b) CPR r47.9(3) specifies the consequence of failure to comply.
Parties may have thought the consequence of failure to comply with CPR r.47.9(2) was the issue of a Default Costs Certificate under CPR r.47.11. However, if a Receiving Party never files a request for a Default Costs Certificate under CPR r.47.11(1), the Court will not issue one.
As such, can it be said that the consequence of failure to comply with the deadline for service of Points of Dispute is the issuance of a Default Costs Certificate? No, as I have explained, the Receiving Party may never file a request for a Default Costs Certificate. Equally, the Paying Party could serve their Points of Dispute out of time, at which point the Court cannot issue a Default Costs Certificate .
What should you do?
In my opinion, the most important thing is to ensure that you stay abreast of the situation. If the parties can engage in ADR and avoid Points of Dispute altogether, then great.
However, if Points of Dispute are required, ensure that you have the deadline diarised and request extensions of time promptly. If you find yourself in a position where the requested extension of time will take the parties over the 28-day maximum, an Application (hopefully) by Consent will be required; attracting the Court Fee of £126 .
Whether any extension request is agreed or approved by the Court will always be dependent upon the specifics of the case.
