In a decision that has surprised many, the Court of Appeal has upheld a decision to grant relief from sanction for the late service of witness statements, despite agreeing with the judge that the breach was not trivial and there was no good reason for it: Chartwell Estate Agents Limited v Fergies Properties SA  EWCA Civ 506.
The Court of Appeal emphasised that the judgment in Mitchell (see post) did not say that the two factors specifically mentioned in the revised CPR 3.9 (i.e. the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance) would always prevail over any other circumstances where the default was not trivial and there was no good reason for it. Although the stated expectation was that those two factors would “usually” trump other circumstances, the court did not say that they always would. That, the court said, must be right because CPR 3.9 requires that all the circumstances are to be taken into account and that the application is to be dealt with justly.
Here the circumstances justifying relief included that the fault was on both sides, the trial date would not be lost if relief was granted and (importantly) a refusal to grant relief would, on the facts of this case, effectively mean the end of the claim.
This decision arguably marks a softening of approach, with the court recognising that: (i) the balance of prejudice may be a factor that can come into play as part of “all the circumstances” that the court is required to take into account under CPR 3.9 (though it cannot be argued on an application for relief that the sanction itself is inappropriate); and (ii) “all the circumstances” may entitle the court to depart from the expectation that would ordinarily arise where a breach is non-trivial and there is no good reason for it, and (exceptionally) grant relief from sanctions. The judgment emphasises:
“the courts in considering applications under CPR 3.9 do not have and should not have as their sole objective a display of judicial musculature. The objective … is to achieve a just result, having regard not simply to the interests of the parties but also to the wider interests of justice. As has been said by the Master of the Rolls …, enforcing compliance is not an end in itself. In the well-known words of Lord Justice Bowen: “The courts do not exist for the sake of discipline”. Such sentiments have not been entirely ousted by CPR 3.9, as to be interpreted and applied in the light of Mitchell.”
Each case will however turn on its facts and, following Mitchell, it would be foolhardy to assume that relief will be easy to come by where a party cannot establish that it had good reason for a non-trivial breach.
The claimant failed to serve witness statements by 22 November 2013 as required by the court’s order. It said in correspondence that it could not finalise its statements without further disclosure from the defendant. It threatened an application for specific disclosure, but did not make such an application.
On 16 January 2014 the defendant gave some of the disclosure being sought, though it said the documents in question were not relevant to the matters in dispute. The defendant refused to agree a draft consent order extending time for witness statements, taking the view that under CPR 32.10 the claimant could not rely on witness evidence unless it obtained relief from sanction.
The claimant issued an application on 27 January for an extension of time and an order that “the parties” be granted relief from sanction under CPR 3.9 for the failure to exchange statements in time.
The High Court (Globe J) granted an extension of time and relief from sanction (see section 6 of this post) despite concluding that the breach was not trivial and there was no good reason for it. The defendant appealed.
The Court of Appeal (Laws, Sullivan and Davis LJJ) dismissed the appeal, finding that the judge was entitled to decide the matter as he did.
Although the judge had correctly found that the breach was not trivial and there was no good reason for it, he was still required under CPR 3.9 to consider “all the circumstances of the case” to deal with the application justly. Those circumstances included the important fact that granting relief would not mean the loss of the trial date; a fair trial could still be had and no significant extra cost would result.
The judge was also justified in attributing importance to the fact that refusal to grant relief would effectively mean the end of the claim, since the burden of proof was on the claimant to prove its case and it would have no evidence. The court said it would be “unreal” not to have regard to such a consequence, though it could not be determinative in light of the Court of Appeal decision in Mitchell, which requires paramount importance to be given to the two matters specified in CPR 3.9.
The judgment highlights two points on which the Court of Appeal does not agree with the notes to CPR 32.10 in the White Book (2014 ed.) which are worth noting:
- First, the suggestion that where before trial a party seeks an extension for service of witness statements, CPR 3.9 might not apply because at the stage the sanction imposed by CPR 32.10 (that the witness may not be called to give evidence unless the court gives permission) has not yet had effect. That interpretation was not correct. The sanction provided in CPR 32.10 was to be taken as having effect once the time limit for serving the statement had expired.
- Second, the suggestion that where a witness statement is served after the specified date, it would be unjust to exclude the party from adducing the evidence at trial “save in very rare circumstances” such as where there is deliberate flouting of court orders or where a trial date would have to be adjourned. The court pointed out that , in light of the revised CPR 3.9 and the decision in Mitchell, that statement might pay insufficient regard to the more rigorous approach now required in cases of non-compliance.