So many times, we question ourselves over whether we have calculated the correct date for service or filing of an important Court document. Getting it wrong can be costly, and, in the extreme, fatal to the case.
CPR 2.8 sets out how we go about calculating time, and parts 2.8 (2) and (3) specifically explains the clear day rule which often catches practitioners out:
“(2) A period of time expressed as a number of days shall be computed as clear days.
(3) In this rule ‘clear days’ means that in computing the number of days –
(a) the day on which the period begins; and
(b) if the end of the period is defined by reference to an event, the day on which that event occurs
are not included.”
For example, where a CMC is listed for March 30th and the Court orders bundles to be filed no later than 7 days before the CMC, the last date for filing is March 22nd.
CPR 2.8 (4) continues to explain that:
“Where the specified period –
(a) is 5 days or less; and
(b) includes –
(i) a Saturday or Sunday; or
(ii) a Bank Holiday, Christmas Day or Good Friday,
that day does not count”
Therefore, where a witness statement must be served 5 days before a hearing listed on Tuesday 14th March, the deadline for service is Monday 6th March.
Interestingly, CPR 44 practice direction 9.5 (4) provides different rules for the filing and service of a statement of costs before a fast track trial and other hearings;
“The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event –
(a) for a fast track trial, not less than 2 days before the trial; and
(b) for all other hearings, not less than 24 hours before the time fixed for the hearing.
Where a fast track trial is listed for 1.30pm on the first Tuesday after Easter, taking into account the clear day rule and CPR 2.8 (4), the statement of costs must be filed and served no later than the Tuesday before. Wednesday and Thursday provide the 2 clear days, with Good Friday, Easter Saturday, Sunday and Monday not counting. Therefore, in this instance, 7 days before the hearing – suddenly the 2 days turn into 7 days.
However, if it were an interim application hearing listed for 1.30pm on the first Tuesday after Easter, the statement of costs must be filed and served no later than 1.30pm on Maundy Thursday. What is crucial here is that this rule provides for hours and not clear days. Therefore, filing and serving at 1pm on Maundy Thursday would be perfectly acceptable despite it being within no clear days of the hearing. The clear day rule does not apply when the rules specify the deadline as a number of hours rather than a number of days.
Being aware of this subtle difference could prove to be a very useful tool for any practitioners who are under time constraints for the filing and service of Court documents. A note of advice – if in doubt then check the rules. The rules regarding filing and service can easily catch you out, particularly bearing in mind that there are also rules surrounding the method of filing and service, i.e. service by email, fax etc., in addition to those relating to timing.
If you have any questions or queries in relation this blog please contact Joanne Chase (firstname.lastname@example.org and 0113 336 3327) or the Clarion Costs Team on 0113 2460622.