Uniform Rules 19(1), 26 and 70

The festive dies non: where 16 December to 15 January actually applies

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There is a widely held belief that the High Court simply stops counting between 16 December and 15 January. It is half true, and the half that is wrong causes missed deadlines every January.

It is attached to rules, not to the court

The Uniform Rules contain a 16 December to 15 January exclusion in exactly three places. In each one it appears as a proviso inside a single rule, worded to that rule's own period. There is no general provision suspending time in the High Court over the festive season.

Note that the exclusion in Rule 26 is expressed to cover the time allowed for the delivery of any pleading — but only for the purposes of that rule, which is to say once a notice of bar is running. It is not a licence to treat every pleading deadline as suspended.

What runs straight through

Every other period in the Uniform Rules runs over the festive period as though it were any other fortnight. That includes the ones most likely to arrive in December.

• The plea under Rule 22(1) — twenty court days, counted through the recess.
• Summary judgment under Rule 32 — the fifteen days from delivery of the plea run over the period, and the opposing affidavit is due five days before the hearing regardless.
• Discovery under Rule 35, and every period that follows from it.
• The expert notice and summary periods under Rule 36(9).
• Replication and the later pleadings under Rule 25.

The days themselves are still not court days. 16 December, 25 December, 26 December and 1 January are public holidays under the Public Holidays Act, and weekends are weekends. A period running through the festive season is shortened by those, exactly as it would be by any other holiday — it is simply not suspended.

Why the distinction matters in practice

Consider a summons served in early December. The notice of intention to defend gets the benefit of the Rule 19(1) proviso: the clock stops on 16 December and starts again on 16 January. So far the common understanding holds.

The plea does not. Twenty court days from the notice, counted through the festive period with the public holidays taken out, will often expire in the second half of January — while the file is still in the pile from December and everyone assumes there is time. If a notice of bar then arrives, the five days under Rule 26 *are* subject to the exclusion, which is small comfort in late January when the window has already closed.

The practical consequence is that the festive period lengthens the front of a defended action and compresses everything after it. A diary built on the assumption that nothing counts until 16 January will be wrong about most of the file.

The window itself

Where the exclusion applies, it covers 16 December to 15 January, both dates inclusive. That is the wording in the Uniform Rules. Other windows are sometimes quoted — 20 December to 7 January among them — and they do not come from the Rules.

The Magistrates' Court

The Magistrates' Courts Rules deal with the festive period separately, and their scope is not the same question as the High Court's. Anyone applying a dies non in a Magistrates' Court matter should read the applicable rule rather than assuming the Uniform Rules position carries across.

This is an area where practice and the text of the Rules have drifted apart, and where different divisions issue their own directives. Treat the table above as the starting point and check the current consolidated Rules and any directive of the division before relying on a date.