I am grateful to Ashley Pratt of St James Chambers for his note of the decision of Mr Justice King in Johnson -v- Bourne Leisure on the 21st July 2014. King J granted relief from sanctions and allowed an appeal from the Circuit Judge after witness statements were served late. Further the defendants (the respondents to the appeal) were held to have acted unreasonably in resisting the appeal and ordered to pay costs.
The judgment is a link below and also appears in full. (I should make it clear that this is Ashley’s note of the judgment and not approved by the judge).
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY AND APPEAL CENTRE
MR JUSTICE KING
APPEAL REF: BM4/0063A
ON APPEAL FROM THE STOKE ON TRENT COUNTY COURT
HHJ MAIN QC
Claim No: 2YN70120
B E T W E E N:
MISS KIRSTY ANNE JOHNSON
BOURNE LEISURE LIMITED
Note of Judgment
Not approved by judge
Before Mr. Justice King sitting in the High Court the Queens Bench Division, Birmingham District Registry and Appeal Centre on 21st July 2014.
Counsel for Appellant/Claimant: Mr. Ashley Pratt
Counsel for Respondent/Defendant: Mr. Christopher Alldis
- By an application notice dated 29 January 2014 C sort an order from the court below to retrospectively extend the deadline for serving her witness statements from 26 September 2013.
- This application pursuant to CPR 3.9 for relief from sanctions was two fold in that it required relief for service of C’s witness statement and that of her supporting witness. C’s statement (signed) was delivered on 22 October 2013 along with her supporting witnesses statement (unsigned). C had believed they had posted a signed statement of her supporting witness on or about 7 November 2013. It turns out that C did not in fact serve her supporting witnesses statement (signed) when her solicitor thought he had done so. No point was taken by D in the court below. I repeat D had not picked this up and C had not realised.
- The particulars of claim allege two accidents one on 25 December 2009 and on 5 May 2010. Proceedings were issued on 14 December 2012, Poc’s lodged on 8 April 2014, and defence served on 24 April 2014.
- The key dates for this appeal, as per HHJ Main QC’s decision, were those dates contained within the directions order of DJ Schroeder dated 20 June 2013. Critically, for present purposes, evidence of fact was due to be exchanged by 4pm on 26 September 2013. The order of District Judge Schroeder stated at paragraph 4:
‘(a) By 4 pm on 26 September 2013 both parties must serve on each other copies of the signed statements of themselves and of all witnesses on whom they intend to rely….
(b) Oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late, except with permission from the Court.’
- There was evidence before HHJ Main QC as to the reason why C wanted an initial extension to serve her witness statements on D, but it is not clear why D agreed to the extension. I should say there was mutual agreement between the parties to extend service of the witness statements to 10 October 2013. However, considering CPR 32.10 and CPR 3.8(3) it is clear that such an extension needed the approval of the court.
- D themselves did need to have an extension to 10 October 2013. I say at once D has never sought an extension for relief from sanctions.
- The signed statement of C and the unsigned statement of her supporting witness were served 12 or 13 days after the agreed extension between the parties. HHJ Main QC summarised, at paragraph 10 of his judgment, confirming that the parties had afforded themselves an indulgence until 10 October 2013.
- C’s solicitor gave two reason for the late service of the statements (1) he was pressed with work and (2) C was having a gall bladder operation, which delayed her returning her signed statement. It is important to note that HHJ Main QC did not comment whatsoever about the operation, although he knew about it, in his reasoning for refusing relief. The reasons for the delay were contained in C’s solicitors statement accompanying the original application for relief.
- Remarkably D’s counsel took issue with the bona fides of C claiming that she had surgery and that this caused a delay. I say this is remarkable because D did not take issue with this at all in the court below.
- The next event that occurred was on 9 December 2013 when the date for trial was listed for 3 march 2014. The application notice for relief from sanctions was dated 29 January 2014. The application for relief, as I have said, was made on the basis that C believed that D had signed copies of C’s statement on or about 23 October 2013 and on or about 7 November 2013 for C’s supporting witness.
- D has had sight of the contents of both C and her witnesses statement since at least 23 October 2013. The application for relief from sanctions did not come before the court speedily. In the intervening period a PTR was heard on 18 March 2014. At the PTR the trial date of 3 March 2014 was vacated. Just jumping ahead there was a further trial window provided for by HHJ Main QC at the PTR for between 5 June 2014 and 21 May 2014. The trial was then listed for 5 June 2014. That trial date had to be vacated pending the outcome of this appeal. As yet no future date for trial has been fixed.
- When the application came before HHJ Main QC on 7 March 2014 he refused C relief from sanctions. In his judgment he noted that he had previously allowed the trial date to be extended because C, at that stage, had not obtained updated hospital records. Before I set out my observation I note that HHJ Main QC does not, as part of his judgment, say that he has taken into account the fact that C had failed to provide up to date hospital records as a reason for refusing to grant C relief from sanctions.
- What he said with regards to the medical evidence was contained at paragraph 6 of his judgment, but this did not form part of his reasons for refusing relief. However, I now understand that it is D who has managed to obtain the up to date medical records and they have been trying to obtain these since about 7 February 2014 following delivery of a mandate from C’s solicitors. It has clearly been difficult for both C and D to obtain the up to date hospital records and D, even though it has been trying for some months, has only just received these. There has clearly been a problem with the hospital releasing the records.
- It is clear to my mind that HHJ Main QC only took into account two factors when refusing D relief from sanctions. Factor (1) the breach he found to not be trivial when considering the case of Mitchell and (2) The application was not made promptly and referred to the fact that it had taken C the time between 26 September 2013 – 29 January 2014 to make the application. At paragraph 19 of his judgment HHJ Main QC did look at, when deciding the application to view ‘the agreement between the parties, extending the deadline; or the failure of the Defendants themselves to comply with their own obligations; or the fact the case (sic), for other reasons unconnected with any witness statements, had to be adjourned and the trial of the action delayed. Well, in my judgment, all that counts for nought. The rules are plain. The rules are clear’.
- Therefore it is quite clear to me that HHJ Main QC did not take into account all of the circumstances of the case. Again, it was quite clear that the judge was only taking two factors into account.
- Since Mitchell the Court of Appeal have had to revisit their judgment as it appears to have been misconstrued by the lower courts. This message has been made clear in the latest authority of Denton at paragraph 31. Courts have been finding that if there is no good reason for the breach then they have been too ready to refuse relief from sanctions. As the court in Denton makes clear the court has to take into account the two factors in CPR 3.9 that is (a) and (b). Factors (a) and (b) are required to have placed upon them particular importance when a decision for relief from sanctions is being considered.
- In addition to the above, Denton has imposed a 3 stage test in considering a relief from sanction application. Stage (1) involves considering whether the breach is serious or significant. The court of appeal has disavowed the use of a triviality test recognising the difficulty with such a test. In considering stage 1 the court did in part adopt a test of materiality. That test being whether or not the relief required imperils a future hearing date or the litigation generally. It also said that there maybe other breaches that did not fit this test such as not paying a court fee on time.
- In assessing stage (1) I am not to take into account other breaches that have occurred during the course of the litigation.
- Stage (2) considers why the failure occurred. There is not a list of good or bad reasons.
- Stage (3) involves considering all of the circumstances of the case.
- The reasoning of HHJ Main QC was wholly flawed. He did not adopt the three stages in Denton and in my view he did not even take into account properly those matter contained in Mitchell. In my view, even under the stricter interpretation of Mitchell HHJ Main QC’s judgment could not stand.
- D at the hearing before HHJ Main QC kept their heads down. They knew that the consequence of C being granted relief was that they too would require an order for relief from sanctions. In the case of Chartwell at the High Court level, Mr. Justice Globe took into account the fact that D were also in breach of serving their witness statements and they too would require relief. Mr. Justice Globe sets out those consideration at paragraph 39 of his judgment. I note that Mr Justice Globe’s decision was upheld by the court of appeal.
- If relief from sanctions is not granted this effectively means an end to C’s action. The failure to serve witness statements on time did not imperil the trial date, there was default on both sides, and there are no additional cost implications. I have also taken into account factors (a) and (b) under CPR 3.9.
- Considering the three stages in Denton I find that at stage (1) the breach was not serious or significant. If I am wrong about this then in any event at stage (2) C’s solicitor had provided a good reason, and (3) taking all of the circumstances of the case into account as above I find it would be unjust not to grant C relief from sanctions.
- I also accede to the oral application of D’s counsel for relief from sanctions as this matter needs to head for trial.Given D’s unreasonable approach to the litigation that is to say they changed their position form being neutral to being outright opposed to this appeal, I would award costs of the appeal against them
- I therefore grant C a retrospective extension of time to serve her witness statement and a further seven days to serve the statement of her witness. The case is to be remitted back to the county court for further directions.