Give ‘em enough rope

Date: 26 October 2007
Authors: Richard Harrison
Issue: Vol 157, Issue 7294
Categories: Opinion, Procedure & practice, CPR

Richard Harrison has his patience tested by over-hasty lawyers

I am constantly amazed at the battles I have to engage in to obtain what, in the overall scheme of things, is a very reasonable period of time to create a document that will if “properly prepared” be of considerable assistance to the court.

In civil litigation under the Civil Procedure Rules (CPR), the general position is that a defence is due within 28 days of the date of service of the particulars of claim (CPR 15.4). The parties are allowed to agree a further 28 days (CPR 15.5), and it is possible that the court may extend the time further (surprisingly not dealt with in the CPR, see White Book commentary at 15.5.2).

I suggest that a reluctance to grant the initial agreed extension is the mark of an insecure and immature solicitor who can not control and properly advise his client. I also believe that any further applications should be consented to within reason. Most cases will benefit from a relatively small delay which enables a defendant properly to consider how to put his case and, if he is to be hung, generally provides him with enough rope to complete the job.

commercial life

The commentary to the White Book does not suggest its authors have much exposure to the reality of commercial and office life where there are many competing demands and the preparation of a full response to a document which the claimant has had months if not years to consider is not always the most important or compelling task. They say (15.5.1):

“One aim of the CPR is to set a tight but realistic timetable and insist on compliance with it….The court cannot allocate the case to its appropriate track nor proceed to give case management directions and timetable the case until the defence is filed.. There is therefore some urgency in requiring the defence to be filed.”

They also say (at 15.5.2) that it is submitted that the parties cannot agree an extension beyond 28 days. The onus is on the defendant to apply to the court. This may be true but the lacuna should be filled enabling the parties to agree reasonable extensions. The idea that tight pleading timetables promote efficient justice, is, as discussed below, misguided.

Other than as a simple matter of reviewing the value of the case and setting what always turns out to be an unrealistic timetable, I have no great regard for the case management abilities of most courts I have come across. The real delay in case management comes from getting a realistic trial date. Allocation itself is never a very difficult procress: in fact, it is scarcely a judicial act at all. It is more important to get the statements of case right and, with all due respect to the “tight timetable” proponents, that should take priority.

Despite the high-handed wording of the overriding objective, it is unreasonable to expect all litigants to treat litigation as an absolute business priority. There is no virtue in rushing through initial court procedures: a reasonable extension of time to state a case will not deprive other litigants of any access to court resources, or justice.

A defendant is not a villain because there is a case to answer. A claimant is not an angel who is entitled to expect an opponent to put themselves under extreme pressure and possibly get something wrong. Just because you have instigated court proceedings does not enable you to dictate a pace of response when you have had the luxury of time to contemplate and prepare your case. Yet the self-righteousness and conspicuous virtue of many claimants’ solicitors who take advantage of the brief moment of ascendancy granted to them by the present rule does not instil respect.

The current obsession with tight periods of 14 days derives from a long-gone era of efficient postal services, short and flat chains of authority and less complex facts, both in terms of participants and documents. When Mr Tulkinghorn took instructions from Sir Leicester Dedlock, the information, decision making and communication allowed for prompt turnaround, even allowing for the stage coach between Lincoln’s Inn Fields and Lincolnshire. Now communication is instantaneous but fact finding and decision making cannot be. Managing the logistics of any litigation project in our complex commercial world of competing priorities cannot control time, that most inelastic and unforgiving of commodities.

The issues in modern litigation rarely concern one person, or information which is in the control of one person. The process involves a network of resources to be managed, documents to be cross-checked and facts to be verified. Meetings need to be arranged between busy people; sources of information need to be tapped and exploited. An emerging piece of information may well mean that other conclusions need to be revisited. Various interests need to be consulted.

Give them enough rope

I make it a personal rule, so far as I can, always to grant extensions when permitted to do so and always to advise my clients to do so. I always rely on the “give them enough rope” principle: there is time enough in the litigation process to exploit real advantage and scope enough to penalise prevarication. Justice is better served by reasonable delay. The court should recognise this and so should practitioners.

I therefore suggest that it is commonly accepted professional practice for a requested extension to be given by the parties or the court, save in exceptional circumstances. Anyone in need of an authority to quote to the effect that it is generally accepted professional practice can now quote this article at NLJ, 26 October 2007, p 1497. The editors of Civil Procedure might be encouraged to make the reference.

Richard Harrison is a partner at Laytons

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