A recent case in the Technology and Construction Court has found that one party's agreement to an extension of time on basis that no further extension would be sought did not prevent the other party being able to apply to the court for a further extension.
The Claimants in this case had originally applied for an extension of time for service of witness evidence. The Defendants had written back agreeing to the extension: "But only in so far as you agree the following points: there will be no further extensions to the date of damage timetable, the four‑week extension will remove any flexibility from the date of damage timetable. The defendants will not agree to the disruption of the four‑week date of damage trial set down for February 2022. On that basis, the defendants will not agree to any further extension requests or applications and the claimants should not have liberty to apply."
The Defendants' letter included a draft consent order. However, the consent order itself did not make it clear that no further application for an extension of time would be made by the Claimants.
In considering the Claimants' application for a further extension of time, O'Farrell J did not consider that this previous correspondence precluded the Claimants from making the application.
The basis of the earlier extension of time should be taken into account as "background", but as the Claimants rightly pointed out, there had been no unless order, and no firm agreement by the Claimants in the order that no further application for an extension of time would be made.
The court therefore had the discretion to grant an application for a further extension of time.
Weighing up all the competing factors, however (including the fact that the litigation concerned an oil spill that had taken place ten years earlier, the failure to comply with the procedural timetable and the potential prejudice to the Defendants) the Claimants' application seeking an additional extension of time was refused.
This case emphasises the importance of parties making sure that any agreements reached in correspondence are clearly reflected in orders approved by the court. In particular, when agreeing extensions of time, express wording is needed in any order (or possibly even an unless order) to ensure the time extension really is final.