Retreat from Mitchell-Jackson

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There has been a recent update to the clinical negligence model Directions, as used by the Queen's Bench Masters, which would mean a change to the standard directions that would allow parties to agree an extension of time for a period of up to 28 days, without the need to obtain court approval. 

The Civil Procedure Rule Committee is currently considering whether this should comprise of a general change to model or standard directions.  These changes are in an attempt to reduce extensions of time applications and free up time for Judges. 

The Rules Committee has confirmed however, that this has no application elsewhere as follows:-

"A draft amendment to the clinical negligence model direction used by the Queen's Bench Masters, allowing for times set by the directions to be extended by up to 28 days by agreement, has been approved by the PQBD and Deputy Head of Civil Justice but no decision has been taken on whether there should be any general change to model directions or to standard directions under the Civil Procedure Rules. This is the subject of discussion within the Civil Procedure Rule Committee and any decision will require the approval of the Master of the Rolls."

The Master of the Rolls has recently indicated that the Rules Committee is looking into allowing parties to agree one extension of time between themselves, without recourse to the court. 

However, another source, Professor Dominic Regan, has stated that he has heard that no such extension is on the cards, leaving us all to become far more efficient litigators and at the hands of external parties such as witnesses and experts. 

It is clear that the courts' time is being taken up with applications for extensions of time and relief when a direction is missed.  It appears that a reasonable step to free up the court time would be to allow such an extension without recourse to the court and the court appears to be allowing requests for extensions and relief when the trial date will not be affected, if the extension or relief is granted.    However, this appears to fly in the face of the Reforms, and would lead to some backtracking by the Rules Committee and the Judiciary, creeping back to the old days, pre-Jackson and pre-Mitchell.  At present it appears that almost one year on from so called "J day" we are still in the dark as to how the future of litigation will be.

For the time being if a direction cannot be complied with, the important thing to do is to apply for an extension of time.  This will be far easier than trying to get relief from sanctions after the date to comply with the direction has passed.