SANCTIONS: CASE WATCH

This section  looks at decisions in relation to relief from sanctions and the general principles of CPR 3.9. Often there are links to the decisions themselves, together with links to posts on this blog.

SEPTEMBER 2016

AUGUST 2016

JULY 2016

MAY 2016

APRIL 2016

  • Murray -v- BAE Systems (Liverpool CC 1st April 2016) Costs budget served late: relief from sanctions allowed on appeal

MARCH 2016

JANUARY 2016

DECEMBER 2015

NOVEMBER 2015

OCTOBER 2015

SEPTEMBER 2015

AUGUST 2015

JULY 2015

JUNE 2015

MAY 2015

APRIL 2015

MARCH 2015.

FEBRUARY 2015

JANUARY 2015

DECEMBER 2014

NOVEMBER 2014

October 2014 

September 2014

August 2014

July 2014

DENTON

Denton -v- White; Decadent Vapours -v- Bevan;  Utilise -v- Davies [2014] EWCA Civ 906.

CASES PRIOR TO DENTON

“We recognise that hard-pressed first instance judges need a clear
exposition of how the provisions of rule 3.9(1) should be given effect. We hope that
what follows will avoid the need in future to resort to the earlier authorities.” (Paragraph 24 of the Denton judgment).

July 2014

June 2014

May 2014

April 2014

  • Baho & Ors v Meerza (2014) CA (Civ Div) (Treacy LJ, UnderwoodLJ) 10/04/2014.  (currently only available on lawtel)

March  2014

February 2014

January 2014

December 2013

November 2013

CASE SUMMARIES

(Below are brief summaries of the cases which were reported in the months following Mitchell)

 WAHID AND SHADKAM –V- SKANSKA UK PLC AND RIVERSTONE INSURANCE [2014] EWHC 251 (QB) (Mrs Justice Slade DBE)

LAKATAMIA SHIPPING V NOBU SU [2014] EWHC 275 (Comm)

Non-compliance in this case was held to be trivial. A deadline was just missed for reasons which were explicable, if not excusable. It is the type of case in which relief will “usually” be granted in accordance with the guidance provided in the Mitchell case.

DEVON COUNTY COUNCIL V CELTIC BIOENERGY LTD [2014] EWHC 309 (TCC STUART-SMITH J)

Stuart-Smith J considered the effect of a schedule of costs being served 18 minutes late. The blunt answer was that there was a “substantive irrelevance” and no account would be taken of the 18 minutes delay.

BANK OF IRELAND V PHILLIP RANK PARTNERSHIP [2014] EWHC 284 (TCC)

Mr Justice Stuart-Smith considered (and rejected) an argument that an error in the statement of truth meant that the costs budget was filed late.

S.E.T. SELECT ENGINEERING GMBH V F&M BUNKERING LTD [2014] EWHC 192 (COMM)

This case includes some interesting observations about whether relief from sanctions applies when an application to dispute jurisdiction is made late and the exercise of the Mitchell discretion when an application is made one day out of time.

JONES –V- WEALTH MANAGEMENT (UK) LTD (2014) Ch D (Arnold J) 12/02/2014

The claimant was granted relief from sanctions after being struck out for failing to arrange a telephone hearing.

CHAMBERS V BUCKINGHAMSHIRE HEALTHCARE NHS TRUST [2013] EWHC (QB) Master Cook

The case highlights the fact that defendants  too can fall foul of the problems caused by Mitchell.

LOTUS CARS LIMITED V MECANICA SOLUTIONS INC [2014] EWHC 76 (QB)

This case considers whether providing combined costs budgets is a breach of the cost budgeting provisions.

BURT V CHRISTIE (DJ LUMB BIRMINGHAM CC 10/02/2014)

In Burt -v- Linford Christie the court refused relief from sanctions where the defendant filed to file the costs budget in time.

HMRC V MCCARTHY & STONE (DEVELOPMENTS) LTD, MONARCH REALISATIONS NO 1 PLC (IN ADMINISTRATION) [2014] UKUT B1 (TCC)

HMRC applied for, and was granted, permission to appeal from a decision in relation to input tax.  The rules required a Notice of Appeal to be supplied in one month of permission being granted. The Notice had to be supplied by the 6th May. In fact it was supplied on the 1st July 2013, 56 days late.  HMRC made an application to extend time.

Their application was refused. The two requirements specifically mentioned in the new CPR 3.9, namely the need for appeals to be conducted efficiently and the need to enforce compliance with the UT Rules, lead ineluctably to the conclusion that HMRC’s application to submit a notice of appeal after the time limit has expired should be refused

For the full discussion see Mitchell in the Context of a Tax Appeal : HMRC hit a stone wall

THE QUEEN ON THE APPLICATION OF ROYAL FREE lONDON NHS FOUNDATION TRUST [2013] EWHC 4101 (ADMIN)

The claimant failed to apply to set aside the order within the deadline or comply with a court order. Their application (made six weeks after the deadline) to set aside the order and for relief from sanctions failed.

There was no good reason for the delay and the fact that there was no prejudice to the other party did not help them. Under CPR 3.9 the question of prejudice is no longer a reason for allowing or disallowing relief from sanctions.

For a full discussion of this case see Mitchell and Sanctions in the Context of Judicial Review: Was it Worth the Candle ?

NEWLAND SHIPPING & FORWARDING LTD -v-  TOBA TRADING FCZ [2014] EWHC 210 (Comm)

Application for relief from sanctions entering judgment should normally be by way of appeal.

M A LLOYD -V- PPC INTERNATIONAL LTD [2014] EWHC 41 (QB)

This was a case where the claimant failed to comply with an order dated 11th October 2013 that it serve witness statements on certain issues.  The order was that the claimant file the statements dealing with certain specified issues and the defendant file statements in reply.

The judgment starts with the words:

“1.This case provides yet another example of a litigant treating an order of the court as if compliance were an optional indulgence.”

The claimant provided no real reason for failing to comply with the deadline and nearly three months had passed since the deadline had passed.

The judge observed:

“THE LAW

15. CPR 32.10 provides:

“32.10 Consequence of failure to serve witness statement or summary

If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.”

16. In this case, by 16 January 2014 (the date of the hearing before me) nearly three months had elapsed since the deadline had passed for compliance with the order of Walker J. relating to the filing and service of witness statements by the claimant. The claimant had not applied for an extension of time to comply with the order.

17. Accordingly, as the matter presently stands, the claimant is precluded by the operation of CPR 32.10 from calling at trial any intended witness or witnesses in respect of the issues identified in paragraph 5 of the order of Walker J. Indeed. one possible interpretation of CPR 32.10 is that the party in default is not permitted to call the intended witness to give oral evidence on any matter unless the court gives permission even if the witness statement not served in time is intended to relate only to a distinct part of the evidence relied upon and his other evidence is contained within in other witness statements which have been served in time. I heard no submissions on this point and do not intend to resolve it. Suffice it to say that, in the circumstances of this particular case, I would not, all other things being equal, expect Mr Key to be precluded from giving evidence on material matters outside the scope of the order of Walker J. provided that such evidence is set out in witness statements which have been served in compliance with the orders of the court. However, I do not adjudicate on the issue as to whether or not the deployment of Mr Key’s oral evidence on such other matters would further be dependant upon the future permission of the court. This may be a matter which the court will be invited to consider at the next hearing.

18. Since the burden of proof in respect of the two issues as defined falls on the claimant then, in the absence of evidence, its contentions in respect thereof must fail unless the court were to be persuaded to grant relief from sanctions.

 A RELIEF FROM SANCTIONS APPLICATION WOULD BE HOPELESS

The claimant indicated that it would seek relief from sanctions.  The judge observed:

“Counsel for the claimant intimated that his client intended to issue an application for relief from sanctions in time for it to be heard at the next interim hearing in this matter on 30 January 2014. However, I am entirely satisfied on the evidence before me that there is no realistic prospect that such relief would ever be granted

EXTENDING TIME

There is consideration of the rules for extending time.

“21. In the light of the Mitchell decision, the courts have taken a consistently robust approach to the late service of witness statements (see Durrant v Chief Constable of Avon & Somerset Constabulary [2013] EWCA Civ 1624 and Karbhari v Ahmed [2013] EWHC 4042 QB).

22. The delay in this case of nearly three months is serious and the resultant breach cannot be categorised as trivial. Indeed counsel for the claimant realistically conceded that the breach was not trivial.

23. Furthermore, there is no evidence before the court of any good reason for the delay. It was not open to the claimant to allow weeks and weeks to pass without taking positive steps to comply with the order on the basis that further disclosure, for which no formal application had been made, was awaited.

24. It is to be noted in this context that Practice Direction 23A provides:

“2.7 Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.”

25. The fact that, at the eleventh hour, the claimant’s solicitors have volunteered a proposed consent order extending the time for service of witness statements falls far short of salvaging their position.

26. CPR 3.8(3) provides:

“Where a rule, practice direction or court order-

(a) requires a party to do something within a specified time; and

(b) specifies the consequences of failure to comply,

the time for doing the act in question may not be extended by agreement between the parties

27. CPR 32.10 specifies the consequences of failure to serve a witness statement. It follows that even if the parties had purported to reach a concluded agreement on an extension of time this would not have been effective unless the court were to be persuaded formally to endorse it. This court is under a duty under CPR 1.4 not simply to adjudicate passively upon the applications of the parties or to rubber stamp their reciprocal procedural indulgences but actively to manage cases. To this end, the court has power under CPR 3.3 to make orders of its own initiative.”

THE CONCLUSION: THE CLAIMANT COULD NOT CALL EVIDENCE ON THE SPECIFIC ISSUES THAT THE WITNESS STATEMENTS WERE TO HAVE ADDRESSED

28. Under the new regime, courts should be proactive to achieve the overriding objective as recently re-formulated. In this case, the defendant did not make any application to the court specifically in respect of the claimant’s default in complying with the order of Walker J. but asked only for little more than a new timetable and the court’s indulgence in respect of what it perceived to be its own default. This approach was, in my view, unduly timid.

29. It is to be noted that the order of Walker J. was expressly worded to provide for the sequential disclosure of witness statements and skeletons and that the obligations placed upon the defendant were to be “in response” to compliance by the claimant with its own obligations in this regard. I therefore doubt very much whether the defendant was in default of the order relating to the filing and service of witness statements at all. The obligation upon it was to respond and there was nothing to respond to.

30. It follows that if I had been minded to approach this matter on the basis of the defendant’s application for permission to file a witness statement I would not have applied the principles of CPR 3.9 but would have treated the application as a freestanding one to be considered on its own merits.

31. However, for the reasons given above I decline to take the course which the defendant has advocated. The deadline by which the claimant ought to have filed and served a compliant witness statement has long since passed. The breach is not trivial and the reason given is not a good one. Accordingly, I take the view that, in the circumstances of this case, the proper approach of the court is to make an order of its own initiative debarring the claimant from raising any issue at trial relating either to the existence of the defendant company or its entitlement to litigate in this jurisdiction as defined in the order of Walker”.

WEBB RESOLUTIONS LTD -v- E SURV LIMITED [2014] EWHC 49 (QB)

This was an appeal from a detailed assessment hearing from a Master. Permission to appeal was refused by the Master and the defendant appealed. The application was refused in July, however the defendant did not receive the order until the 10th October. On the 20th November they made an application for an extension of time within which to seek an oral renewal of their application for permission.  The matter came before Blair J on the 27th November, an extension of time was given permission to appeal was granted.

The defendant applied to set aside the order of Blair J.

THE PRINCIPLES APPLIED

It was agreed that the claimant had the power to set aside the order of the single judge because he was not represented at the hearing. Mr Justice Turner held that this was a power that should be exercised sparingly.

OVERTURNING THE ORIGINAL DECISION

Mr Justice Turner overturned the original order.

  • The application for permission should have been served within 7 days of receipt.
  • Blair J’s attention was not drawn to the fact that the application had been made seriously out of time.
  • The decision in Mitchell had only been made earlier that day.  The claimant and the judge did not appreciate that that judgment was strongly adverse to the application.

THE RELEVANCE OF MITCHELL

Turner J considered the relevance of Mitchell to the facts of the current case.

“MITCHELL

19. In Mitchell the court took a deliberately “tougher and less forgiving approach” to the question of how strictly the courts should now enforce compliance with rules, practice directions and court orders in the light of the Jackson reforms. It observed at paragraph 60:

“60 In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past.”

             20. I remind myself that CPR 52.3(5) does not provide for a specific sanction to follow in the event that an application to renew is served out of time. Strictly speaking, therefore, it may be concluded that CPR 3.9 relating to the granting of relief from sanctions ought not to apply. I am satisfied, however, that it is appropriate for the court to apply the same approach to such an application as falls to be examined in this case as did the Court of Appeal to the breach relating to costs budgeting in Mitchell.

            21.       I take this approach because:

i)The wording of CPR 52.3(5) is unequivocally expressed in mandatory terms;

ii)The time limit of 7 days is deliberately short thereby emphasising the need for very prompt action

iii)There is a clear and compelling priority for there to be an end to litigation and for the parties to be in a position to know when that end has been reached.

            22.       Accordingly, I consider that under CPR 52.3(5), a party in default seeking an extension of the time limit for a renewed application for permission to appeal will have to satisfy the same tests as were applied to the default in Mitchell:”

THE IMPOSITION OF SANCTIONS

It should be noted that this is another case where, in the absence of specific sanctions, the court decided that Mitchell principles applied.

THE APPLICATION OF THE MITCHELL PRINCIPLES

The end result can come as no surprise at all to anyone familiar with the Mitchell principles.  The judge addressed the two central questions: was the delay “trivial” and was there good reason for that delay.

“23. The default in this case was not trivial. The defendant delayed for a period of about three times in excess of that permitted by the rules.

24. There was no good reason for the delay. The reasons set out in the defendant’s application were:

“It is respectfully submitted that the time allowance of seven days is not a sufficient timescale for the Appellant to consider the impact of the decision, advise the client of the decision, advise as to the merits of possible actions and to make the application.

E-Surv Limited are not legally trained and cannot be considered to be a legally sophisticated client. They are a firm of Chartered Surveyors and cannot be expected to be able to consider the ramifications of a refusal to allow an appeal.

When liaising with E-Surv it is necessary to speak initially with the case handler, in this case a Lisa Jarrett, who in turn liaises with the Finance Director of E-Surv Limited. Instructions are then fed back “down” the chain to Just Costs. Once instructions are received to proceed, an advice is provided to E-Surv who in turn consider the same and advise accordingly.

Instructions to proceed with an Oral Hearing were received outside of the seven day time limit.”

25. In the light of the stringent approach taken by the Court of Appeal in Mitchell as to what may or may not constitute a good reason it is plain, without the need for further elaboration, that the reasons relied upon by the defendant whether taken individually or together came nowhere near to satisfying the test. They were thoroughly bad reasons.

26. For the avoidance of doubt, I would say in any event that the default in this case was so blatant and avoidable that I would have exercised my discretion in the same way even applying the less robust approach which would have been appropriate under the old regime.

27. If Blair J. had been directed specifically to the period of delay after the notice had been received and had read the case of Mitchell then I am in no doubt that, regardless of the prospective merits of an appeal, he would have refused an extension of time.

CONCLUSION

28. It must follow that the time for appealing in this case ought never to have been extended and I accede to the claimant’s application to set aside the order of Blair J. and order that the defendant’s appeal is out of time and that permission to extend such time is refused.”

THEVARAJAH -v- RIORDAN [2014] EWCA Civ 15.

The case related to a failure to comply with an unless order for disclosure.   At a hearing for relief from sanctions the defendants’ application for relief from sanctions was refused.  However at a later hearing, during the time listed for the trial,  a different judge allowed the application. The hearing at the Court of Appeal was an appeal by the claimant against relief from sanctions being granted.

THE APPEAL HEARING

The Court of Appeal allowed the appeal. There were a number of reasons.

1. APPLYING TIBBLES

The Court held that the “Tibbles” criteria for a setting aside an original order applied when a second application was made under CPR 3.9. In brief these criteria are summarised in the judgment of : Patten J in Lloyds Investment (Scandinavia) Ltd v Christen Ager-Hanssen [2003] EWHC 1740 (Ch):

“Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position.”

The defendants’ application in the current case did not come anywhere near satisfying these criteria.

2.   LATE COMPLIANCE WITH AN ORDER DOES NOT REPRESENT A MATERIAL CHANGE OF CIRCUMSTANCES.

The Court made it clear that the fact that a party had complied with an order after the relevant date did not represent a material change in circumstances.

Whether the respondents had in fact complied with the disclosure requirements in the unless order was a matter of dispute before us, but there is no need to examine that issue.  Even if the required disclosure had been made at last, some three months after the date for compliance under the unless order itself and almost two months after the date of Hildyard J’s refusal of relief from sanction for non-compliance, it could not in our view amount to a material change of circumstances for the purposes of an application under CPR 3.1(7).  It could not alter the fact of non-compliance with the unless order or amount to a good reason for that non-compliance, nor would it undermine the reasoning that led Hildyard J to refuse relief from sanction.  There was nothing here by way of material change of circumstances, and there was no other basis for an application under CPR 3.1(7) to vary or revoke Hildyard J’s order.”

3.            FAILURE TO APPLY RIGOROUS CRITERIA

The Court went on to consider the judgment granting relief from sanctions as a whole.  It held that an incorrect test was applied.

“First, we think it plain that, even if he had been entitled to give fresh consideration to the question of relief from sanction, his general approach to the application of CPR 3.9 in its present form was wrong in principle.  It lacked the robustness called for by the guidance subsequently given by this court inMitchell and gave insufficient consideration to the need (a) for litigation to be conducted efficiently and at proportionate cost, and (b) to enforce compliance with rules, practice directions and orders, considerations which “should now be regarded as of paramount importance and be given great weight” (Mitchell para 36).  It also failed to take as its starting point that the sanction in the unless order, which had not itself been the subject of appeal or an application under CPR 3.1(7) for variation or revocation, had been properly imposed and complied with the overriding objective (Mitchell para 45).  Whilst referring to the first instance judgment which was upheld in Mitchell and to the observations of the Master of the Rolls in the 18th Jackson Implementation Lecture which were endorsed in Mitchell, the deputy judge does not appear to have been guided by them.  Instead, he appears to have placed weight on principles derived from Rayyan al Iraq Co Ltd v Trans Victory Marine Inc and Ian Wyche v Care Force Group Plc (see para 13 above), first instance decisions which were subject to critical comment at paras 47-51 of Mitchell.  There is more generally a striking contrast between the deputy judge’s approach and that of Hildyard J in his judgment of 9 August.  The approach of Hildyard J sits well with the guidance in Mitchell.”

4.            APPLICATION MADE LATE

                The timing of the second application was a highly significant factor.

“Secondly, the deputy judge paid insufficient attention to the fact that the second application had not been made promptly but came almost two months after Hildyard J had refused relief and just two days before the trial was due to start.  The importance of promptness in relation to applications under CPR 3.1(7) was underlined in Tibbles (see para 26 above).  It was emphasised in Mitchell in relation to applications under CPR 3.9 (see, for example, paras 40 and 46 of the Mitchell judgment); and the judgment of this court in Durrant v Chief Constable of Avon & Somerset Constabulary [2013] EWCA Civ 1624, at paras 49-51, placed particular weight on the failure to make a prompt application under CPR 3.9 in concluding that relief from sanction should be refused.  The deputy judge was wrong to regard the respondents’ delay in making the second application as of no significance (see para 18 above).  Further, his approach was all the more surprising given that a speedy trial had previously been ordered.”

 5.            USE OF COURT RESOURCES

The court was critical of the amount of time that the application took (4 of 5 days of the trial window).               

“Thirdly, the deputy judge allowed the hearing of the application for relief from sanction to take up a disproportionate amount of court time (see para 10 above), with the result that the trial date would have been lost even if the application had been refused.  We are sceptical of the view he expressed that the case was not ready for trial by reason of the appellant’s own failure to comply with earlier directions; but even if that view was correct, it did not justify the taking up of so much time on an application (let alone a second application) for relief from sanction. “

 6.            DIFFICULTY IN ASSESSING THE DEFENDANTS’ ROLE IN PROCEEDINGS

 One factor that had persuaded the judge at first instance to give relief was the difficulty in assessing the role that the defendants could play if  they were debarred from defending.

 “…we are troubled by the deputy judge’s observation that even if the respondents remained debarred from defending the claim they would be “entitled at trial to require the Claimant to prove his claim, to cross-examine and make submissions” (see para 16 above).  The cases to which he referred in that connection, namely Culla Park Ltd v Richards [2007] EWHC 1687 and JSC BTA Bank v Ablyazov (No. 8)[2013] 1 WLR 1331, do not appear to us necessarily to support so sweeping a proposition.  This issue, however, will be a matter for decision by the judge who hears the trial; and, having put down a marker in relation to it, we think it better to say no more on the subject at this stage.” 

OVERVIEW

In summary:

  • A second application under CPR 3.9 is subject to the “Tibbles” criteria.
  • CPR 3.9 should have been applied more rigorously.
  • The timing of an application is important.
  • The fact that there may be difficulties in identifying the role a defendant can play if the defence is struck out does not appear to be a relevant factor when considering a CPR 3.9 application.

LONG -v- VALUE PROPERTIES LTD

THE APPLICATION FOR RELIEF FROM SANCTIONS

This was an application for relief from sanctions arising out of a failure to serve copies of the CFAS or relevant details of the success fees. The judgment observes.

“Following settlement, detailed assessment proceedings were commenced in October 2013 but no statement of reasons or other
information was served contrary to Section 32.5 of the Costs Practice Direction which applies to this case by virtue of CPR Rule 48.1.

2. Consequently, the Claimant has applied for relief from sanctions in the following terms.
“That the Claimant/receiving party be relieved from any sanction imposed by
CPR 44.38 and/or any Sections of the Costs Practice Direction, for failing to
serve the paying parties’ solicitors with copies of the CFAs and/or a statement
setting out the relevant details of the success fees in accordance with CPR
32.5. “

RELIEF FROM SANCTION REFUSED

A large number of applications were raised by the claimant. Including an argument that Mitchell was inconsistent with Wyche.  However, despite reservations about the nature of the sanction being disproportionate the Master found:

  • There was a breach of sanctions.
  • The oversight was not trivial as defined by Mitchell.
  • Relief from sanctions could not be granted.

The Master observed:

“39. The decision in Mitchell is clearly the Court of Appeal’s opportunity to turn Sir Rupert 
Jackson’s extra-court pronouncements into judicial precedent. The Court’s decision in 
Durrant reinforces that position. I do not think I can realistically follow a different 
approach based on one High Court decision, as Mr Power encouraged me to do, even 
if I considered that to be the appropriate course. Furthermore, even if Mitchell is being 
appealed, and I have no information on that, the case of Durrant makes it clear that the 
Court of Appeal’s general view is clear on applications of this sort. Therefore, whilst I 
may have qualms about the nature of the sanction imposed for a breach of this 
particular provision of the CPR, I am clear that I need to take that as being the correct 
sanction and simply concentrate on whether the breach was trivial and if not whether 
there is a good reason for granting relief. Both of those questions are to be answered in the negative in this case”

HARRISON –v- BLACK HORSE LTD [2013] EWHC B28 (Costs)

This was an application for relief from sanctions heard by Master Gordon-Saker on the 20th December 2013.  The action was a claim relating to allegedly mis-sold mortgage protection. The claimants lost at trial and at the Court of Appeal. However the action was compromised following permission to appeal being granted by the Supreme Court. The defendant agreeing to pay the claimants’ costs and a sum of £3,099.08 in return of premiums paid and interest.

The claimants claimed costs in excess of £2.5 million.  The claimant served notice of funding in relation to the initial hearings but did not serve any notices in relation to the appeals to the High Court and Court of Appeal.

The claimants applied for relief from sanctions.

THE FINDINGS OF THE MASTER

The first finding was that there was no evidence that the notices of funding were sent or received. He also found that the defendant was prejudiced by the failure to give notice of the funding arrangements. If they had known that the appeals were being funded by a conditional fee agreement with an additional liability they may have compromised the claim earlier.

RELIEF FROM SANCTIONS

The Master considered the Mitchell criteria and refused relief from sanctions.

“46.     In my judgment it cannot be said that the failure in this case was trivial. The rules required the Claimants to give notice of the change in funding arrangements and they did not do so in any form.

 47.       The burden is therefore on the Claimants to show a good reason for the failure to give notice. I have accepted that Miss Taylor intended to give notice and prepared the necessary documents. But for some reason that intention was not fulfilled. We do not know why the documents did not get to the Defendant’s solicitors. There may have been an error on the part of the Claimants’ solicitors, or an error on the part of the DX service provider, or possibly even an error on the part of the Defendant’s solicitors.

 48.       But the burden is on the Claimants. Their evidence stops at the point when the letter and notice of funding left Miss Taylor’s hand. They have failed to produce any evidence of the reason why the documents did not reach the Defendant’s solicitors or evidence to show that, whatever the reason, it was outside of their control.

 49.       This may seem harsh, particularly given my view that the failure was not intentional.  But the Claimants’ solicitors should have known of the change that was coming. The amendment of CPR 3.9 was recommended by Lord Justice Jackson in his final report published in December 2009. The change of approach and the “Singapore experience” were emphasised by him in the 5th implementation lecture on 22nd November 2011. The new, tougher approach to relief from sanctions was again emphasised by the Master of the Rolls in the 18th implementation lecture on 22nd March 2013.

 50.       The Defendant had served its points of dispute in February. There is no reason why the Claimants could not have issued their application for relief well before 1st April 2013. The application might have been heard before then. It would certainly have been heard before the decision in Mitchell was handed down.

 51.       Following the hearing of this application but before this judgment was circulated in draft form, the decision of Mr Justice Norris in Forstater v Python (Monty) Pictures Ltd[2013] EWHC 3759 (Ch) was handed down. I therefore gave counsel an opportunity to comment on it by written submissions.

 52.       In Forstater the first claimant had provided information about his conditional fee agreement but his company, the second claimant, had failed to serve an N251. The second claimant applied for relief from sanctions. Its solicitors had told the defendant in correspondence, 2 months after the second claimant had been joined as a party, that they were acting under a conditional fee agreement but they had not served notice in form N251. It was not suggested that the form in which the information was conveyed had caused any prejudice. However the court observed that the failure to convey the information until the letter:

“… probably had an impact on the conduct of the action (because until then [the first defendant] was not in possession of all of the information relevant to a disposal of the claim) and [the second claimant] has not demonstrated that it did not.”

 53.       The court granted relief from sanctions but only as from the date of the letter. The draft judgment in Forstater was circulated before the judgment in Mitchell was handed down but as Mr Justice Norris made clear in the last paragraph he saw no need to revise it.

 54.       One can well understand why. As from the date of the letter Forstater was a case of a trivial failure – giving the information by letter rather than by form N251 – and so a failure of form rather than substance. However the court did not grant relief for the period before the date of the letter because, as in the present case, the failure to give the information “probably had an impact on the conduct of the action (because until then the Defendant was not in possession of all of the information relevant to a disposal of the claim) and the Claimants have not demonstrated that it did not”.

 55.       Accordingly the application for relief from sanctions is refused.”

KARBHARI -v- AHMED

This was a  High Court case listed for seven days. On the first day of the trial the defendant’s counsel indicated that it would be necessary to amend the Defence and introduce a supplementary witness statement. The case was adjourned to the following day.

The explanation for the original failures was remarkable.

“THE DEFENDANT’S EXPLANATION

  1. In paragraphs 3 and 4 of his supplementary witness statement the defendant says:

 “3. I should explain to the court why I am making this further statement. The reason that my statement dated 29 April 2013 was so short of facts and detail was that I was concerned that if I told the full story I could get a number of other people in trouble in connection with money laundering. As far as I am concerned I am personally not at risk should any investigation take place.

4. Now that it is clear to me that the trial is going to go ahead I have decided that I must tell the whole story.”

  1. Counsel for the Defendant realistically admitted that the supplementary witness statement did not simply provide additional evidence but evidence which, at least in part, contradicted the content of the Defence as originally pleaded. He further volunteered the unavoidable concession that his applications were “extraordinarily late.”

THE RULES

The supplementary witness statement was served seven months late (and on the second day of the period listed for trial).  Turner J held that no legitimate conceptual distinction could be drawn between a failure to serve an expert’s report on time and a failure to serve a witness statement.

Where the court has ordered witness statements to be served by a certain date and they have not been served by that date then, to obtain the court’s permission under CPR 32.10, the party in default must persuade the court to grant relief under CPR 3.9(1)

CONSIDERATION OF THE MITCHELL CRITERIA

The judge considered the Mitchell criteria and found:

  • The defendant’s breach was far from trivial. The late service of the witness statement amounted to a serious departure from the court order. The new witness statement was not a mere formality but an attempt to introduce wholly new (and inconsistent) material to the case.
  • No good reason had been made out. Omitting large volumes of material in order to protect those guilty of money laundering was not a good reason.

The Defendant’s application was refused.

LATE SERVICE OF WITNESS STATEMENTS

The judge recognised that there could be evidential developments which postdated the time at which earlier witness statements have been served.

  1. There will be other cases in which there are evidential developments which postdate the time at which earlier witness statements have been served. It is, by way of example only, by no means unusual in personal injury cases for updated witness statements to be served in order to cover a claimant’s progress over the period since the original witness statements were served. This situation falls within the approach of the Court of Appeal in Mitchell at paragraph 41 which I repeat for ease of reference:

“Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal.”

In cases in which there is a realistic possibility that there will be evidential developments between the date upon which witness statements are to be served and the trial date this ought to be anticipated in the orders of the court. In such cases, the wisest course would be to seek to persuade the court to make two orders relating to the service of witness statements. The first would provide for a date which would give a realistic opportunity for all sides to comply with respect to matters which have arisen beforehand. A later backstop date could be ordered for the service of supplementary statements limited in content to matters which occurred, or were reasonably discoverable, only after the first date. This would have the advantage of obviating the need for further applications to the court and of giving the court the opportunity to exercise proportionate case management discipline in advance. In this way, in the vast majority of cases the unanticipated last minute service of witness statements should become a thing of the past. I would expect the same to apply to expert reports.

FALSE STATEMENTS

The defendant had admitted making false statements. The defendant admitted that his motivation was to cover up money laundering activities. The judge held that this was “a flagrant abuse of the process of the court”.

 It would be pointless and absurd if the defendant were allowed to present a case based solely on evidence contained in his original witness statement which he now says is inaccurate and incomplete. Moreover, it would be inevitable that cross examination would afford the defendant the opportunity to introduce by the back door the evidence to which the court has refused admittance by the front door.

STRIKING OUT OF THE DEFENCE

The judge found that the proportionate response was the striking out of the defence.   He appreciated the seriousness of the consequences.  But these were counter-balanced by:

1. The scale of the defendant’s default which was very serious.

2. The default was due to a deliberate decision based on improper motives.

3. No effective sanction, short of striking out the defence, was practicable.

THE STING IN THE TAIL

The judge, however, stayed execution pending an investigation by the police and HM Revenue and Custon.  He was concerned that the transactions involved money laundering and/or tax evasion. He requested the attendance of a detective officer of the Economic Crime Unit at court.

DURRANT -V- THE CHIEF CONSTABLE OF AVON & SOMERSET CONSTABULARY [2013] EWCA Civ 1624

This is the first case in which the Court of Appeal has considered a relief from sanctions case post Mitchell.

THE FACTS

The Claimant, a litigant in person, made claims against the Defendant and its officers for false imprisonment, assault and breaches of the European Convention on Human Rights. The Defendant failed to serve their witness statements on time and subsequently applied for relief.

They then made a second application for relief and  sought to serve four further witness statements two months before the trial and another two statements five days before the trial.

The trial judge granted relief allowing the Defendant to rely on all of the statements.

THE JUDGMENT

The Court of Appeal allowed the Claimant’s appeal. The initial judge had granted relief from sanctions in circumstances which did not justify relief on any proper application of CPR 3.9. The Defendant’s breaches were serious. There application was so late that it had to be heard on the morning of the trial, resulting in a vacated trial. There evidence in support of their applications did not provide a good reason for their non compliance.

APPLYING MITCHELL

When considering the effect of Mitchell Lord Justice Richards stated :

[38]The judgment in Mitchell reiterated (at para 52) that this court will not lightly interfere with a case management decision.  It quoted the observation of Lewison LJ in Mannion v Gray [2012] EWCA Civ 1667, para 18, that “it is vital for the Court of Appeal to uphold robust fair case management decisions by first instance judges”.  Equally, however, if the message sent out by Mitchell is not to be undermined, it is vital that decisions under CPR 3.9 which fail to follow the robust approach laid down in that case should not be allowed to stand.  Failure to follow that approach constitutes an error of principle entitling an appeal court to interfere with the discretionary decision of the first instance judge.  It is likely also to lead to a decision that is plainly wrong, justifying intervention on that basis too.  We do not share Mr Payne’s concern about this leading to an increase in appeals and thereby undermining the efficiency benefits of the Jackson reforms.  As is stated at para 48 of the Mitchell judgment, “once it is well understood that the courts will adopt a firm line on enforcement, litigation will be conducted in a more disciplined way and there should be fewer applications under CPR 3.9.  In other words, once the new culture becomes accepted, there should be less satellite litigation, not more”.  


 ALDINGTON & 113 OTHERS -V- ELS INTERNATIONAL LLP (IN ADMINISTRATION) 2013

(The  summary is based on an article by Legal Futures at http://www.litigationfutures.com/news/exclusive-high-court-grants-first-post-mitchell-relief-sanctions . The full transcript is available at https://civillitigationbrief.wordpress.com/2013/12/16/full-copy-of-transcript-of-adlington-v-els/)

THE FACTS

The claimant’s claims were based on losses they allegedly suffered in respect of failed investments in property in spain. The claimant’s solicitors subsequently failed to comply with an unless order to serve the particulars of claim of eight of the claimants. They were unable to serve the particulars as some of the claimants were abroad or unavailable and could not sign their statements

THE JUDGMENT

HHJ Oliver-Jones QC found that the claimant’s breach could be classified as trivial and was one “of form rather than substance”.  In reaching this conclusion he noted :

(1) The particulars of claim had been drafted by the deadline, but   could not he signed.

(2) The breach was an insignificant failure  in the context of the order as a whole .

(3) The application for relief was made promptly. Had an application for an extenstion been made before the deadline it almost certainly would have been granted.

(4) The nature of non-compliance cannot be divorced from consideration of the consequences of non compliance. Whether or not a failure to comply with an order is significant or insignificant must involve having regard to consequences.

(5) In this case there was no adverse consequences at all, either to the defendant or to the efficient conduct overall of the litigation.

APPLYING MITCHELL

HHJ Oliver Jones said that even if he was wrong to consider the non-compliance trivial he would have granted relief in any event. He stated:

“Applying the guidelines in Mitchell, the question then becomes, was there a good reason for the default? The claimant’s solicitor does not suggest he overlooked or otherwise disregarded the deadline; on the contrary, he was very acutely aware of it. Nor does he rely on ‘pressure of work’ as an excuse, although he clearly was under great pressure. If he had advanced these excuses, then it would have been likely that they would have been rejected.

“The real reason for the failure to comply was the fact that Mr Cotter did not realise that a few of his clients would be simply unavailable to sign their particulars of claim when the time to do so arrived. The arrangements for holidays made by the eight relevant claimants were outside Mr Cotter’s control.”

“I have undertaken that balancing exercise and given great weight to the two factors identified expressly in the rule. However, bearing in mind that the relationship between justice and procedure has not changed so as to transform rules and rule compliance into trip wires, and ‘nor has it changed it by turning the rules and rule compliance into the mistress rather than the handmaid of justice’ , I am satisfied that relief should be granted in all the circumstances of this case.”

SG DR PETROL SRL –V- VITOL SA [2013] EWHC 3920

THE FACTS

 The claimant failed to comply with an order for security for costs. They subsequently applied for an extension of time and relief from sanctions. This was refused.

APPLYING MITCHELL

 The Judge reviewed the principles to be derived from Mitchell and reiterated the points made in the Court of Appeal’s judgment. He then went on to make some general observations. He stated :

(1) On an application under CPR 3.9(1) the Court will be engaged in looking more widely than at the case in hand, as well as at the case in hand; “the new approach … seeks to have regard to a wide range of interests”: see [51]. I respectfully offer the observation that there are limits to the contribution that a party, especially a non-defaulting party, can usefully make in evidence or argument in respect of circumstances extending beyond the case in hand – for example on what is needed “to enforce compliance with rules, practice directions and orders.” This is pre-eminently an area for the judge. In Mitchell the Court of Appeal was not putting an enhanced tactical weapon into the hands of non-defaulting parties to the litigation. This is clear from the nature of the factors specified at (a) and (b) of CPR 3.9(1). It is reinforced by the concern of the Court of Appeal to reduce satellite litigation: see [60].

       (2) The second observation arises from the fact that when citing the Court of Appeal in Mitchell the parties referred me closely to the examples given by the Court of Appeal, with the Defendants (the non-defaulting parties) pressing me with the point that the case in hand was not within one or more examples. I respectfully doubt that is the right approach. The examples are there simply to illustrate the principles described by the Court of Appeal. The Court’s inquiry should be guided by the principles. My own view is that ideally the jurisdiction to extend time and grant relief from sanctions is one in which (as Lord Templeman urged in The Spiliada [1987] AC 456, HL in relation to service out of the jurisdiction) a judge would not be referred to other decisions on other facts”

For a full discussion of the case on Civil Litigation Brief see https://civillitigationbrief.wordpress.com/2013/12/11/sg-dg-petrol-a-high-court-post-mitchell-decision-on-relief-from-sanctions/

NORSEMAN HOLDINGS LTD –V- WARWICK COURT (HAROLD HILL) MANAGEMENT COMPANY LTD [2013] EWHC 3868 (QB)

THE FACTS

  Warwick Court brought a claim against Norseman Holdings for unpaid service charges. Warwick Court  obtained default judgment, but then realised they had served the proceedings at the wrong address. Default judgment was set aside and Warwick Court were ordered to pay NHL’s costs. NHL obtained a default costs certificate, however Warwick Court argued this was obtained irregularly. At a subsequent hearing an order was made stating that NHL undertook not to enforce the costs order. NHL subsequently appealed the order.

COMMENTS ON MITCHELL

When dismissing the appeal HH LJ Coulson stated “certain aspects of NHL’c conduct of the litigation generally, and this appeal in particular, can only be described as extraordinary. It provides a salutary lesson for those who continue to complain about the changes to the CPR brought about by Sir Rupert Jacksons Review of Costs and, in particular, the new emphasis on proportionate costs.”

This appeal epitomises that waste. It is precisely the sort of disproportionate incurring of costs that the Costs Review, and the subsequent changes to the CPR , were designed to address. The recent judgment of the Court of Appeal in Mitchell v Newsgroup [2013] EWCA Civ. 1537 makes plain that parties to civil litigation need to conduct their case in accordance with the rules of court, so that these expensive interlocutory skirmishes (which almost always have their roots in a failure to comply with the rules in the first place, or some other form of error) become a thing of the past. Here, the best course would have been for District Judge Valve’s order striking out the defence to be enforced, so that this litigation – benefiting no-one but the lawyers — would have come to an end over a year ago. 

FORSTATER AND MARK FORSTATER PRODUCTIONS LIMITED –V- PYTHON (MONTY) PICTURES LTD AND FREEWAY CAM (UK) LTD [2013] EWHC 3759 (CH)

THE FACTS

This case concerned the assessment of costs. One of the issues was whether the Defendant could recover a success fee as an additional liability when they had not given any information about their funding to the Claimant. Under CPR 44.3b it was held that they could not. The Defendant therefore applied for relief from sanctions (after 1st April 2013 but before the Mitchell case).

 THE JUDGMENT

In considering the Defendant’s application Mr Justice Norris made reference to the test to be applied.

“[40.]Once again, this requires me to consider all the circumstances of the case so as to enable me to deal justly with the application having regard to the need for the litigation to be conducted at proportionate cost, and to the need to enforce compliance with the rules.

         [41]. The sanction presumptively imposed shows the importance that the rulemakers attached to the giving of notice about the existence of a funding arrangement of this sort. The form of the notice demonstrates what they thought the key information to be.

         [42.]There is no good explanation for the failure to give notice of their funding arrangement. It was a simple oversight.

 [46] In considering whether to grant relief from sanction I must have regard to the need, so far as is practicable to enforce “rules, practice directions and orders”. This does not mean that each of them must in all circumstances be regarded in exactly the same way, and that the enforcement of each will require exactly the same measures to be taken. This was a failure (through human error) to comply with a rule of general application: it may be contrasted with a conscious failure to comply with a specific order made in the action itself. The policy embodied in CPR 44.3B had at 19 July 2012 been fulfilled (albeit not in a technically correct way) and the substance of the rule was then complied with. The conveying of the requisite information in a letter instead of on form N251 had no discernible impact on the conduct of the action. The failure to convey the information until 19 July 2012 probably had an impact on the conduct of the action (because until then PMP was not in possession of all of the information relevant to a disposal of the claim) and MFPL has not demonstrated that it did not. The consequence of refusing relief may be that MFPL is contractually liable to pay a success fee but would not recover it from PMP: as against that it would appear to have a strong defence to a claim for a success fee from its solicitors, and a claim over against its solicitors in respect of any claim by Counsel. Granting relief would deprive PMP of what may properly be regarded as a windfall (in that it received the relevant information on the wrong piece of paper).

 [47] In all the circumstances I would grant relief from sanctions to this extent: MFPL shall be entitled to recover such additional liability as would have been recoverable if form N251 had been served on 19 July 2012. This leaves open all of the issues normally considered in relation to CFAs (especially the appropriate level of success fee). I consider that a grant of such relief is not inconsistent with the objectives embodied in the current CPR 1.1(2) . I have borne in mind this conclusion when making the costs order summarised in paragraph 34.

 THE APPLICATION OF MITCHELL

 Mr Justice Norris ended his judgment with the following note :

 After I circulated this judgment in draft the Court of Appeal handed down its judgment in Mitchell v News Group [2013] EWCA Civ 1537 . I have considered its terms but do not wish to revise my judgment which I consider proceeds upon correct principles.

  MITCHELL -v- NEWS GROUP NEWSPAPERS

I have also discussed the Mitchell case in detail in a number of posts on Civil Litigation Brief. These can be found at :

https://civillitigationbrief.wordpress.com/2013/12/12/more-mitchell-mayhem-case-struck-out-at-trial-for-bundle-being-delivered-late/

https://civillitigationbrief.wordpress.com/2013/12/10/surviving-mitchell-a-practitioners-guide-1-know-what-happened-in-mitchell-and-how-it-could-have-been-avoided/

https://civillitigationbrief.wordpress.com/2013/12/09/the-aftermath-from-mitchell-this-is-getting-really-really-serious/  

https://civillitigationbrief.wordpress.com/2013/12/04/can-mr-mitchell-still-get-his-costs-a-professors-opinion/

https://civillitigationbrief.wordpress.com/2013/11/28/the-mitchell-criteria-for-relief-from-sanctions-a-detailed-examination/

https://civillitigationbrief.wordpress.com/2013/11/28/mitchell-the-commentary-continues/

https://civillitigationbrief.wordpress.com/2013/11/27/mitchell-key-points-of-judgment/

 

2 comments

  1. What’s the name of the case where the Claim was struck out for the trial bundle being late? I’ve just received a bundle of 600 pages which are illegible for a FT trial tomorrow.

    1. The name was never given, it was a report from London Counsel. All the details I know were on the blog post on the day. I think it was someone from Andrew Ritchie’s chambers – 9 Gough Square, they may have done something on it. Certainly they sent out a circular to all their solicitors.

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