Cats, reputedly, have nine lives and in the past litigants and their solicitors seemed to have as many. The courts’ approach to extensions of time toughened in recent years, but it was still possible to obtain several extensions, say, for serving witness statements, before an unless order was made. Even when an unless order was made, where default resulted in the claim or defence (as appropriate) being struck out, the court had a discretion to extend time for compliance up until the deadline.
The Jackson reforms should make unless orders a thing of the past. Before April this year, a judge was required to consider nine factors under CPR 3.9 when deciding whether to give relief from a sanction. Perhaps most importantly, these factors included the prejudice caused to the parties by the failure to comply with the rule or direction and the prejudice caused to them by the granting of relief.
Since April, judges have a simpler rule to comply with. CPR 3.9 now requires the court to consider all the circumstances of the case including the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules, practice directions and orders.
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