The simplest way to avoid compliance arguments is to comply with court orders. A fundamental starting point for compliance is knowing the precise time by which steps have to be taken.

Despite this, cases are still coming before the courts where legal representatives of all levels are ignorant of or do not understand the requirements of rules 2.8 and 6.26 of the Civil Procedure Rules 1998 (CPR) and practice directions (PD) 5B and 6A. This article is intended to provide clarification.

Calculation of time is rarely based on when a party actually receives something. It is normally based on when a document is deemed to have been filed or served.  

Filing means delivering a document to the court so that it is received by the deadline. Service is delivering a document to a party so that it is deemed received by the deadline. The distinction is both subtle and important.

The date and time for compliance with an order is a guillotine. Where there is a sanction attached this applies whether the breach is a second or a year.  

Most orders will require compliance by 4pm on a specific date. If you file a document electronically with the court it is not regarded as filed until it is received by the court, irrespective of when you sent it (paragraph 8.2 of PD 5B). If you send it at 3.58pm and it is not received until 4.01pm, that is a breach.

Where the order is silent on time you may erroneously think you have longer. However, you cannot physically file papers with the court after 4pm because, even if there is a counter, the court office is shut to the public. If you send a document to the court electronically after 4pm it is deemed to be filed the next day (paragraph 8.4 of PD 5B).

If the order is silent on time you can still serve after 4pm personally or electronically up until 4.30pm on that business day (CPR 6.26).

Any electronic transmission must be completed by the deadline, but receipt does not have to be proved. This is governed by PD 6A, which includes requirements that the party being served must have previously indicated in writing their agreement to this and for the serving party to check if the agreement is qualified in any way for anything other than a fax.

A failure to object to previous service by an electronic method does not amount to an agreement, but has been known to lull parties into a false sense of security.

Some orders do not give a date and time for compliance but require compliance within a defined number of days. This is often directed to avoid time for compliance expiring before the court office has typed up or sent out the order. While it is a practical solution, it is fraught with its own difficulties.

To calculate when you have to comply by, you exclude the day the period begins (usually the date of service of the order – CPR 2.8(3). If the period to comply is five days or fewer you also ignore the weekend, bank holidays, Christmas Day and Good Friday (CPR 2.8(4)). If it is longer than five days those days are included. The practical effect is that a requirement to comply within seven days will inevitably include two weekend days. Where it also includes a bank holiday, seven days gives less time than five!

A further alternative is a window for compliance. CPR 39.5 is an example of this. You are required to comply by filing your trial bundle no more than seven and no later than three clear days before trial. Given that one is more and one is less than five days, the different methods for calculating time for compliance apply. You start by ignoring the trial date. In London, fast-track trials are usually listed for a Thursday. This means the window is from the previous Wednesday to the previous Friday unless there is, for example, a bank holiday which reduces the window to the previous Wednesday to Thursday.

Having calculated when you have to comply by, you then have to take the step in time. If you are sending papers by DX or first-class post they must be posted two working days in advance of the deadline. Second-class post is not accommodated in the CPR, but is provided for under section 7 of the Interpretation Act 1978. This provides for service by post ‘at the time at which the letter would be delivered in the ordinary course of post’, but not filing.

It can be relied on by the court to send documents to the parties, but cannot be relied on by the parties for sending documents to the court. According to the Royal Mail, second-class post provides for service within three working days. The court file rarely confirms whether documentation was sent out by first- or second-class post.

Best advice would be to retain the envelope.

Particular issues arise regarding cost schedules for summary assessment. The requirements are set out in subsection 9 of the practice direction on costs. For fast-track trials they must be served no fewer than two days before the trial. Ignoring the date of service and date of trial means they must be served no later than the Monday before a Thursday trial, unless Monday is a bank holiday, in which case service must be by the Friday. For all other hearings CPR 2.8 does not apply, as the requirement is ‘not less than 24 hours before the hearing’.

Because you are dealing with a calculation of hours it is arguable whether you can rely on a postal service at the last moment. This is because the court will not know the time the post is delivered or would come to the party’s attention. The court is likely to assume receipt on returning home at the end of the day.

In MacDonald v Taree Holdings Ltd [2001] EWCA Civ 312, the Civil Division of the Court of Appeal decided a failure to serve the costs schedule as required did not justify depriving the receiving party of their costs. Whether this remains good law remains to be seen. I am already aware some courts have started to adopt a different approach following implementation of the recent reforms.

District Judge Richard Clarke sits at Bow County Court

Topics