RELIEF FROM SANCTIONS FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: ANOTHER EXAMPLE

In Sloutsker -v- Romanova [2015] EWHC 545 (QB) Warby J granted the claimant relief from sanctions after it failed to serve witness statements in time.

THE CASE

The claimants brought an action for libel. The defendant applied for orders setting aside permission to issue outside the jurisdiction; that the claim had not been validly served and that service be set aside. The claimant made a number of cross-applications in relation to service.

The defendant did not attend the hearing and was not represented.

Prior to the hearing an order was made that the claimant serve evidence in opposition to the application by the 13th February 2015.  The claimant’s evidence was filed on the 13th February but was served on the defendant late, on the 16th February 2015.

KEY POINTS

  • The court could proceed in the defendant’s absence given that the defendant had decided not to attend.
  • Despite the defendant’s non-attendance the claimant still required relief from sanctions in relation to the service of witness statements three days late.
  • There was no good reason for the breach.
  • However in the circumstances of the case it was appropriate to grant relief from sanctions.

THE DECISION TO PROCEED IN THE DEFENDANT’S ABSENCE

 

Proceeding in the defendant’s absence

  1. Where a party fails to appear at the hearing of an application the court may proceed in their absence: CPR 23.11. This is a power that must be exercised in accordance with the overriding objective. Ms Page properly referred me to authority making it clear that the court should be very careful before concluding that it is appropriate to proceed in the absence of a litigant in person who is seeking for the first time to adjourn a hearing:Fox v Graham Group Ltd (26 July 2001) (Neuberger J); SmithKline Beecham Ltd v GSKline Ltd [2011] EWHC 169 (Ch) (Arnold J), [6]. That is not the situation here, however. The defendant has not sought an adjournment. She opposed the claimant’s application for an adjournment by email of 19 January 2015. Since then, she has said nothing.
  2. Where a litigant fails to appear without giving a reason it is necessary to consider first whether they have had proper notice of the hearing date and the matters, including the evidence, to be considered at the hearing. If satisfied that such notice has been given, the court must examine the available evidence as to the reasons why the litigant has not appeared, to see if this provides a ground for adjourning the hearing. The evidence as to notice was contained in the third and fourth witness statements of the claimant’s solicitor, Mr Hutchings. This satisfied me that the defendant had ample notice that her application was adjourned to be heard on 27 February 2015. Such notice was first given by the claimant’s solicitors by means of their provision of a copy of my judgment of 21 January. That was not only emailed on that date, but also sent by post on 22 January to iLaw’s address and to the defendant herself in Moscow. Notice of the new hearing date was also given by the service of the formal order of 21 January 2015, which also set out the evidence timetable I laid down. Although the claimant’s solicitors did not serve this order until 19 February, I find that it was served by the court by posting it first class on 23 January 2015 (see the next section of this judgment).
  3. Mr Hutchings’ statements also establish that the claimant’s evidence in response to the defendant’s application was served on the defendant at iLaw’s address on 16 February, and that the subsequent applications and evidence and the hearing bundle were served in a timely manner at the same address, as were the claimant’s skeleton argument and chronology. An email from iLaw of Thursday 26 February 2015 confirmed that the claimants’ solicitors’ emails of that week had been forwarded to the defendant.
  4. As to the reason for the defendant’s non-attendance, I did not consider that this had anything to do with any failure in the process of serving documents. The defendant has not made any complaint about service on her. I concluded that the probability is that she had never intended to appear in person, but intended all along to rely solely on written materials in the form of her witness statement and iLaw’s letter to the court of 13 January 2015. She is resident in Moscow. She does not wish to be served with English proceedings. When iLaw ceased to represent her, she instructed them to write to the court setting out her position. In doing so they asked for a copy of the letter to be placed on the court file “for the Judge to read at the start of the hearing on 21 January.” Their letter concluded with an indication that the Defendant did not intend to provide further evidence in support of her case of justification, as sought by the claimant; and a request that the court consider the evidence she had already served and grant her application. The defendant did not appear at the hearing on 21 January or protest at having wasted money or effort in arranging to attend. She has not given any indication since that she would attend the adjourned hearing. I was satisfied, therefore, that it was appropriate to proceed in the defendant’s absence.

RELIEF FROM SANCTIONS IN RELATION TO LATE SERVICE OF THE WITNESS EVIDENCE

Despite the absence of the defendant the claimant still required permission in relation to late service of the witness statements and this was considered carefully by the judge.

Permission to rely on late evidence/relief from sanctions

  1. I can dispose shortly of the issue as to service of my order of 21 January 2015. There was undoubtedly an oversight by the claimant’s solicitors. On the morning of 23 January they were notified by email from my clerk that the order had been taken to the associate for sealing and would be ready for collection that morning. They failed to collect it until much later, and Mr Hutchings’ third statement explains and apologises for the fact that he did not serve the order on the defendant until 19 February 2015 (unsealed version) and 23 February 2015 (sealed version). However, the practical effect of CPR 40.4 is that the court serves orders unless agreed otherwise. This is done by first class post. A fourth statement of Mr Hutchings explains that, in response to enquiries made after he made his third statement, a Queen’s Bench associate informed him that the court had served the order by posting it first class on 23 January 2015. The order was not received from the court by Mr Hutchings’ firm, but the defendant has not disputed the assertion that it was sent to (and by implication received at) iLaw’s address. That assertion was made in an email to iLaw of Monday 23 February 2015.
  2. The position is different, however, when it comes to service of the claimant’s evidence. By paragraph 2 of my 21 January order all that evidence should have been served by 4pm on Friday 13 February. It was somewhat faintly suggested by Ms Page that the expert evidence stood in a different category from the evidence of fact, because my order of 4 February granting permission to adduce expert evidence came later, and did not itself contain any debarring order such as that contained in paragraph 5 of my 21 January order. I reject that submission. Paragraph 2 of the 21 January order governed “any evidence” the claimant wished to rely on, and paragraph 5 applied to all such evidence. The mere fact that the claimant had not then obtained permission to adduce expert evidence is nothing to the point.

    he terms of paragraph 5 of the 21 January order therefore mean that the claimant needs permission to rely on any of the evidence served on 16 February 2015.

  3. What the claimant’s application notice seeks is an order varying the orders of 21 January and 4 February, and relief from sanctions. The former is inappropriate, but the latter is appropriate. Paragraph 5 of my 21 January order was in structure identical to the terms of CPR 32.10. That rule provides that if a party fails to serve a witness statement within the time specified by the court, the witness may not be called to give oral evidence without the court’s permission. It is now clearly established that CPR 32.10 imposes a sanction, so that an application for permission is an application for relief from sanctions, which must be approached in accordance with CPR 3.9: Denton v TH White Ltd [2014] EWCA Civ 906,[2014] 1 WLR 3926 at [5] and [52].
  4. CPR 3.9 provides that:

“On an application for relief from any sanction imposed for a failure to comply with any … court order the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.”

  1. In Denton at [24] Lord Dyson MR and Vos LJ, referring to these specified matters as “factors (a) and (b)”, explained the three-stage approach which the court should take:

“The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.

  1. The majority judgment cautioned at [27] against bringing context or circumstances that fall for consideration at the third stage into the first stage assessment of whether a breach is serious or significant. At [35] it emphasised that factor (a) “makes clear that the court must consider the effect of the breach in every case”, and that if it has prevented the court or the parties from conducting the litigation efficiently and at proportionate cost that will be a factor in favour of refusing relief. Factor (b) emphasises that the old lax culture of non-compliance is no longer tolerated.
  2. Ms Page submitted that the failure here was not serious or significant. The deadline was towards the end of Friday 13th, so the evidence was served only a matter of 3 or 4 working hours late. It was served in hard copy and it is likely, given the defendant’s location, that nothing would or could have been done to convey the evidence to her before Monday in any event. The defendant had in all probability decided before that time on her evident policy of non-engagement. The failure has neither imperilled the hearing date or interfered with other cases competing for the court’s attention. In my judgment, however, a failure to serve evidence for a substantial interim application by the deadline prescribed by an order with a debarring provision, albeit a qualified one, is properly characterised as a serious breach. The degree of seriousness, and the factors urged on the court by Ms Page, are circumstances which fall more appropriately for consideration at the third stage.
  3. The evidence as to why the breach occurred is straightforward, but unimpressive. Mr Hutchings explains that “The failure to serve the evidence at or by 4pm on Friday 13 February was down to the fact that finalising the evidence to lodge with the court took up most of the day and our attention was then required on urgent cases including a privacy action going to trial on 2 March 2015 and preparation and service on 13 February of Particulars of Claim in another action.” In short, a combination of late finalisation, mistakenly prioritising the filing of papers with the court over service on the defendant, and oversight due to other work. On this evidence Ms Page is entitled to say, as she does, that there is no question of the failure involving any deliberate flouting of the order or the rules. But she is right to accept that it is no excuse that the solicitors had too much work on. No good reason is provided for the breach.
  4. One important point that was clarified by the judgment in Denton at [31]-[38] is that a serious default for which there is no good reason will not always lead to the refusal of relief from sanctions. Consideration of “all the circumstances of the case, so as to enable it to deal justly with the application”, may lead the court to grant relief. Compliance is not an end in itself. A more nuanced approach is required. I decided to grant the claimant relief from sanctions, and permission to rely on the evidence served on 16 February, for these reasons. First, as the court observed inDenton at [26], there are degrees of seriousness. This breach was far from being at the extreme end of the scale. Secondly, it was not deliberate. Indeed, the evidence was available for service and if it came down to a choice between serving and filing it, the claimant’s solicitors made the wrong choice. Thirdly, consideration of factor (a) tells in favour of granting relief. Apart from necessitating the application for relief – the costs of which will inevitably be borne by the claimant – the breach has not had any or any serious effects on the efficient progress or the cost of this litigation, or any other litigation. Ms Page’s observation that the delay in service is very slight in terms of working hours is a fair one, as is her submission that the likelihood is that the papers would not have been sent off on the Friday in any event.
  5. I bear in mind also that the timetable I set was a relatively generous one, so that service on Monday 16 February still left the defendant more than 4 working days in which to prepare evidence in response if she chose, and 8 clear working days before the hearing in which to consider the evidence. Further, the defendant has decided not to file any evidence in response. In practice, given the nature of the claimant’s factual evidence, to which I shall come, there is little that she could have said by way of evidence in reply. As to the expert evidence, she was aware from my order of 4 February 2015 that she had an opportunity to obtain some of her own. I infer from her silence that she must have decided not to. I bear in mind that consideration of factor (b) would suggest that relief should be refused: the timetable for evidence was set in conjunction with an adjournment sought by the claimant, who was not ready to proceed on the original hearing date. Overall, however, the facts that the breach was not of a high degree of seriousness, was innocent not deliberate, and did not have any significant adverse effects on the efficiency or cost of litigation are enough to outweigh the factor (b) considerations, and to lead to the conclusion that it is just to grant relief.

OTHER POSTS ON THE LATE SERVICE OF WITNESS STATEMENTS

 

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