The Court of Appeal hearing on sanctions after Mitchell goes on. Here I outline, in detail, the submissions and discussions in Denton. Other cases will follow.
DENTON AND OTHERS V T H WHITE LIMITED
Heard by the Court of Appeal on 16th June 2014
(Lord Justice Dyson MR)
(Lord Justice Jackson)
(Lord Justice Vos)
COUNSEL FOR THE APPELLANT/ DEFENDANT
The appellant appeals the order dated the 23rd December 2013 where the Respondent/Claimant obtained permission to adduce an additional six witness statements and the decision to vacate the trial.
LORD JUSTICE DYSON
We have read the papers at length and you do not need to go through the facts and history of the case and should focus on the main issues.
COUNSEL FOR THE APPELLANT
The appellant’s main ground of appeal is that the judge did not apply the new CPR 3.9. Or alternatively like a tail end batsman he took a swipe at applying it but fell short.
This claim began nine years ago – but is not even close to trial. The effect of the order being appealed was that nine days of High Court time was wasted. Now, ten more days of High Court days need to be found to accommodate the trial and there may be further interlocutory applications.
When hearing the Respondent’s application for permission to adduce further witness statements the judge referred briefly to CPR 3.9. He stated he was alive to the new case management approach and the fact that courts must take a tougher approach.
The judge also stated that despite what the higher courts say there is a difficulty between the administration of justice and ensuring robust compliance with rules and court directions.
He made it clear that he was not inclined to follow the new approach and rule in CPR 3.9.
The judge then set out the matters relevant to his approach and conclusion. He stated that if the respondent was not given permission to adduce additional witness statements and evidence the trial would be ‘artificial’. However it is submitted that this is incorrect.
Furthermore the judge’s comments that the case may settle is surprising, as the case was only a fortnight away from trial and there was no indication it would settle.
The Judge failed to refer to the new factors contained in CPR 3.9 or paragraph 36-37 of Mitchell and the factors which are now of paramount importance.
The judge concluded “really it comes down to this, do I insist the trial goes ahead on an artificial basis or allow the evidence and take it out of the list”. But this was not the right question the judge should have asked himself, whether the respondents failure to exchange witness statements by the date of the previous orders a trivial breach?
In this case it was not:
In July 2012 the respondent stated they had no further statements to exchange.
- The possibility of further statements was not raised at the CMC on the 16th February 2013. Even though the appellant served an additional witness statement two months earlier dealing with the new allegation concerning the dimensions of the area.
- The respondent had the opportunity at the CMC to seek directions for exchange of further witness statements in advance of the trial window (1st October 2013-28th Feb 2014)
- No one could have been in doubt at the CMC that the timetable was needed to be appropriate and that the case should have been ready by the summer of 2013.
- It was an ideal opportunity for the respondent to set a further date for witness statements and it should not have been left until December 2013.
It is therefore submitted that the breach was not trivial.
HAVE THE RESPONDENTS PROVIDED A GOOD REASON FOR THE BREACH?
The answer to this can be found in Paragraph 10 of the judgment. The Judge said that there had undoubtedly been a failure on the part of the Respondent to make an application in time and to spring the application on the appellant in November 2013 was wrong.
This shows that the Respondent has no good reason.
I do accept that if the breach is not trivial and there is no good reason for the breach a Judge can still ask is there a good reason to allow relief. But in this case there was not.
Three of the witness statements deal with the same subject- the allegation that sand was put on the milking parlor floor for the cattle. This issue was first raised three years ago in an amended defence.
One of the appellant’s key allegations is that any problem the respondent has experienced with their cattle is due to the condition of the floor, which is not the appellant’s responsibility. His was raised in the appellants witness statement back in 2011. It was also discussed in various expert reports, including one which was disclosed in August 2012 which noted that in 2007 and 2008 the respondents had not put sand down, but had done when the expert went back in 2012.
The expert vets also discussed this issue in March 2013.
The solicitor for the respondent made a statement in support of their application to adduce further witness statements and purported to give an explanation for the witness statements. He stated that the witness statements were obtained after further inspections.
Another one of the witness statements alleges that the author of the breeding records did not know the difference between Friesian cows and Holstein cows.
The importance of this issue should have been clear from the expert report in 2012, which outlined that the different types of cows required different spacing between stalls. This issue should have been readily apparent then. The vets also discussed this issue and how the breed of cows had changed over time.
The two final witness statements concern the impact of modifications to the parlor in August 2013. (These modifications were carried out after the respondents visited a similar farm, and found that the milk parlour at that farm had different dimensions to theirs and that this may help the respondent’s cows.) But the judge did not find that there was a good explanation for not carrying out or dealing with the modifications earlier.
The Judge also referred to paragraph 41 of Mitchell and acknowledged the changes brought about by the respondents actions.
It is accepted that later developments can amount to good reason for an application for further evidence. But the judge acknowledged the important consideration is whether the change in circumstances is foreseeable.
This approach is correct but the parties should take foreseeable changes into account and they have a duty to bring it to the attention of the other parties and the court so that the timetable is not affected if these changes occur.
If a party does not, even though a change was foreseeable, relief should not be given.
In the present case the judge held that the respondent did not foresee that they would find a similar farm to theirs with different dimensions and that making modifications to the dimensions of their own farm would help their cattle.
But looking at the facts, on the 1st June 2012 the expert attended the respondent’s farm and stated he returned on the 13th June to mention issues with the dimensions.
The expert concluded that the parlour contained serious defects and that the root cause of the problem was that the milk parlour was too small for the particular type of cattle. This report was received in July 2012. It was obvious from this that one of the respondent problems concerned spacing. Therefore the respondent did not have to visit another farm to realise what the problem was.
LORD JUSTICE DYSON
So your argument is that the issues crystalised earlier, so there was no good reason for giving additional evidence late- they were entitled to obtain the evidence (although you question the use of the evidence) but that they should have done it earlier.
COUNSEL FOR APPELLANT
Yes, the respondent says they were misled by the report, which said the parlour was “no different” from the farm they later went to visit. But the expert did not change his view from August to February and they visited the farm in February. Therefore there is no reason why they could not have visited the similar farm in August.
The fifth statement the respondents adduced late states that the respondents visited the other farm one week after the CMC. But at the CMC there was no mention of the visit to the other farm or of any intention to visit the farm and file additional evidence in relation to the visit.
The respondent should have said something and this could have been built into the timetable. The respondent argues that nothing was said, as the respondents are farmers not lawyers and did not relate the parlour visit to the litigation.
But the respondents have been represented through out and have even conducted parts of this litigation by themselves – bypassing their solicitors to instruct experts.
Furthermore the respondents completed the modifications to their own farm in one weekend. There is no justification as to why they could not have been carried out sooner.
The judge treated this as a rare case. He found that notwithstanding the non-trivial nature of the breach and no good reason for the breach he gave relief because he was worried about the artificial nature of a future trial. But this is not correct.
The stall work was designed years ago and was suitable for the cows that the respondent had at that time.
The issue of whether the breed has done better after the modifications is, in reality, irrelevant and the lack of this evidence a trial would not have rendered it artificial.
Also given that the trial date would be lost, meant that it was not reasonable to adjourn. The fact that the trial was adjourned in case further evidence became available is nonsense.
SUBMISSIONS ON MITCHELL GUIDANCE GENERALLY
The Bar Council’s submissions seems to be that there should be a change of approach and that justice between the parties should sit equally with the other considerations.
But if this approach is followed the position will not be very different to the previous position.
Mitchell was not revolutionary but evolutionary. The old factors are still relevant but the emphasis has changed.
One issue which has arisen is the differences between CPR 32.10, 33.14 and 31.21.
In rule CPR 33.14 and 31.21 parties cannot rely on expert reports or disclosure evidence if it is not provided to the other party. There is no mention of the lateness of the disclosure.
Where as CPR 32.10 states that witness statements cannot be relied upon if they are served late.
Guidance should be given on whether there is any importance in the fact that those two provisions do not deal with the issue of lateness.
LORD JUSTICE JACKSON
That’s something the rule committee really should address.
LORD JUSTICE DYSON
Yes, we cannot provide guidance on lacunas in the new CPR.
In the present case the judge did have in mind the directions given in the case of Mitchell.
LORD JUSTICE VOS
Well he mentioned Mitchell so the judge clearly had it in mind.
The respondent cannot escape from the fact the witness statements were late.
LORD JUSTICE DYSON
We are not really assisted by this; we are really interested in the reasons given by the judge for relief from sanctions.
I have to accept that the judge did not rigidly apply Mitchell in a formulated way as if it were a reserved judgment. But he did have in mind the Mitchell guidance and the tension between compliance and justice.
The respondent accepts that the breach was not trivial, there was a delay in serving witness statements and the application was made late which means it is not trivial.
It is also accepted that the additional witness statements as to the sand and type of cattle were effectively tidying up areas of evidence that should have been dealt with earlier.
But the witness statements relating to the modifications were due to later developments and do provide a good reason for the respondents application and relief.
LORD JUSTICE DYSON
So we can focus on the modification point.
The appellants argue that we knew about the similar farm earlier due to the expert’s reports.
But in the report there is no mention of their being a difference in dimensions between that farm and the respondent’s farm.
This only became clear afterwards and should have been referred to in the earlier report. The report states that there were identical gates on both farms and no problems on the other farms. So it is unsurprising that the respondent took the view there was no difference in the farms at all. There was therefore no urgency in going to look at the farm.
The respondents did decide to go after all as they wondered why that farm was ok and did not have similar problems to their own.
LORD JUSTICE JACKSON
But why did they leave it till after the CMC?
There is no good reason that would satisfy a lawyers mind.
LORD JUSTICE DYSON
But the respondents have been personally engaged in the litigation and taken a front seat, so what was the trigger for the visit?
They were concerned that they would have to introduce a new batch of in calf heifers that were unfamiliar with the parlour during 2013.
Their focus at the end of 2012 and the beginning of 2013 was therefore to see what would make their farm work better and was not for the purposes of the litigation.
The respondent also did not carry out the visit in a clandestine manner. Their solicitors were aware eight days later and the respondent informed them that they had noticed differences and that it may be relevant.
LORD JUSTICE DYSON
Are you challenging the judge’s finding that springing the applications on the appellant was wrong?
I have to challenge this- there was no evidence before the judge of any backdoor agreements. They should have been made sooner but looked at from the perspective of the respondent who has spent thirteen years dealing with this problem- they live with it everyday. This is an important consideration.
LORD JUSTICE DYSON
If the judge had refused to allow the witness statements then this claim would have proceeded on the expert evidence obtained in July 2013 and the respondent could have succeeded on that evidence ?
Yes, but these changes show if the respondents case is correct and provide assistance to the respondent or alternatively the appellant by showing how the parlour works and whether the milk yield is affected by the changes.
The judge had been involved throughout the case and it was for him to take a view on whether the trial would be artificial without the evidence
In Chartwell it was recognised that there may be other circumstances, which justify relief from sanctions and this as exactly that type of case.
The judge had a wide ambit of discretion and this should be honored. The evidence was important and having a trial on limited evidence is as much a waste of the courts time and resources as an adjournment.
GENERAL SUBMISSIONS ON MITCHELL AND RELIEF
I can only give first hand evidence as to the difficulties that instructing solicitors, who instruct me, are experiencing.
They now spend a lot of time and worry ensuring they are complying with court orders and directions. Time, which should be spend on evidence.
There is also a real danger in the use of the word paramount. As this causes some courts to say that if they are paramount they must trump other considerations. But this was not the intention of Mitchell. Beyond that I do not wish to add anything further but everything outlined in the law society’s submissions are things that are recognizable to me as a practitioner.
I have just one further comment to make, which is that the judge did not give reasons as to why the trial would be artificial. The possibility of further evidence does not render the trial artificial or justify a postponement.