The Judgment of Mr Justice Mostyn in the matter of Cowan v. Foreman & Others [2019] EWHC 349 (Fam) contains some clear warnings to those seeking permission to issue a claim out of time.

The Claimant had sought permission to bring a claim against the estate of her husband out of time. The time period in which a claim ought to have been brought was from 16 December 2016 to 16 June 2017, but the application was not made until nearly 17 months later on 8 November 2018.

Some of the delay was covered by a “stand-still” agreement between the parties, where the Defendant would not take issue with the claim being brought out of time until 1 May 2018 (effectively a private agreement for a time extension). The rest of the delay was put down to ignorance of the relevant time limits.

Mostyn J clearly expressed his view that the “stand-still” agreement was not an appropriate one, stating:

“I was told that to agree a stand-still agreement of this nature is "common practice". If it is indeed common practice, then I suggest that it is a practice that should come to an immediate end. It is not for the parties to give away time that belongs to the court. If the parties want to agree a moratorium for the purposes of negotiations, then the claim should be issued in time and then the court invited to stay the proceedings while the negotiations are pursued. Otherwise it is, as I remarked in argument, simply to cock a snook at the clear Parliamentary intention...

“I am prepared on the facts of this case to ignore the period of delay from 7 December 2017 to 1 May 2018, because that was the period covered by this supposed moratorium. But I suggest that in no future case should any privately agreed moratorium ever count as stopping the clock in terms of the accrual of delay. Put another way, a moratorium privately agreed after the time limit has already expired should never in the future rank as a good reason for delay.”

This decision is perhaps an interesting one, in the general context of civil litigation, where the Courts are increasingly encouraging parties to negotiate in order to try and reach consensus and avoid the need for litigation.

On the subject of “delay” more generally, Mostyn J observed:

“In my judgment, absent highly exceptional factors, in the modern era of civil ligation the limit of excusable delay should be measured in weeks, or, at most, a few months.”

The message therefore seems clear – in respect of statutory time limits, parties cannot agree on private agreements to extend and should issue claims as a protective measure.