There were two High Court cases on relief from sanctions considered today. Both were decisions of Mr Justice Turner Here we consider Webb Resolutions –v- E-Surv Limited  EWHC 49 (QB)and M A Lloyd –v- PPC International Ltd  EWHC 41 (QB). Both cases demonstrate the rigour of case management as a result of the Mitchell decision.
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.
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; and
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.
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.”
MA LLOYD & SONS LTD –V- PPC INTERNATIONAL LTD
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:
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”
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  EWCA Civ 1624 and Karbhari v Ahmed  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 Walke”.”
POINTS TO NOTE
Both of these judgments are essential reading for the litigator. However the approach to CPR 3.8(3) gives an indication that the parties may not have the power to vary the time for any order where the rules provide a sanction, including the exchange of witness statements.