JUDGES MUST “CONTEND WITH THE CHANGING FASHIONS OF APPELLATE COURTS”: ANOTHER LATE WITNESS STATEMENT; ANOTHER CASE WHERE RELIEF FROM SANCTIONS REFUSED

This is yet another appeal concerning the proper application of CPR 3.9 as to relief from sanctions.” The opening words of the judgment of Mr Justice Cranston in Fouda -v- The Mayor & Burgesses of the London Borough of Southwark [2015] EWHC 1128 (QB). He may well have added it is yet another case of witness statements being served late. The judge at first instance had applied the Mitchell principles.  On appeal it was held that relief from sanctions would be refused applying the Denton principles.

THE CASE

The claimant was bringing an action relating to the seizure of his vehicle. Earlier in the action a peremptory order had been made in relation to the claimant’s filing of a list of documents.  The court ordered witness statements be served. The date for service was varied by agreement to the 2nd January 2014. The claimant served his witness statements on the 13th January 2014 (on one defendant) and 6th February 2014 (on another).

THE TRIAL

The first day of the trial was taken up with discussions in relation to a suitable bundle for the trial. On the second day the judge raised the issue in relation to late service and the claimant filed a witness statement and made an oral application for relief from sanctions.  The application was rejected by the judge. At a later application (where the judge made an order for wasted costs)

“….the judge reiterated the concerns he had at the hearing about the competency of the appellant’s solicitors. The case had been “extraordinarily badly prepared” and the appellant had been “peculiarly ill-served by his solicitors who had… appeared, on the face of it, to be advising him in completely unrealistic terms”. The application of 8 April, issued in the name of MartynsRose, not the appellant, was “inexplicable and bizarre” and confirmed his judgement about the solicitors’ behaviour. Given the woeful way the case was presented it was difficult to say whether some kind of claim was properly sustainable. The judge added that the particulars of claim were wholly inadequate although they may have been prepared directly on the appellant’s instructions. The quantification of the appellant’s case was wholly unrealistic, but again that was asserted to be on the appellant’s explicit instructions.”

THE APPEAL

The claimant appealed against the order refusing relief from sanctions, and also giving judgment on the counterclaim. The defendant did not appear at the appeal (taking the view that enough public money had been wasted). The Second Defendant was represented.

RELIEF FROM SANCTIONS

One main argument on appeal was that the judge had made the decision before Denton v T H White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926 was decided

THE JUDGMENT: RELIEF FROM SANCTIONS WOULD HAVE BEEN REFUSED APPLYING THE DENTON PRINCIPLES

(c) Discussion

  1. First instance judges must contend with the changing fashions of appellate courts. Under our common law system the current fashion applies retrospectively; we have not adopted a system of prospective overruling to mitigate the extreme cases. In the present litigation the judge was applying, in effect, the approach of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; [2014] 1 WLR 795. Because Denton v T H White [2014] EWCA 906; [2014] 1 WLR 3926 had not been decided he obviously did not follow the three stage approach of the majority there.
  2. In my judgment, however, if the judge had worked through the majority approach in Denton v T H White he would have reached the same conclusion he did. Certainly non-compliance with the rules – CPR 32.10 in this case – was not significant or serious in this case. But the reason for non-compliance – the second stage in Denton v T H White – was, as Mr Salis conceded, against the appellant. Most importantly, the non-compliance with CPR 32.10 was within a context where the appellant’s solicitors had been serial offenders. There was their dismissive attitude to their disclosure obligations and the unsatisfactory way the case was pleaded. Significantly, the solicitors’ failure to contact Southwark and Newlyn to prepare a bundle for the hearing culminated in the loss of the first day of the hearing. (I note in passing that the solicitors’ errant behaviour continued with the bizarre application of 8 April 2014. There was also the need for them to seek leave in this court to file the application to appeal out of time.) Addressing all the circumstances of the case, including past and current breaches of the rules, which is required at stage three of theDenton v T H White approach, the judge would have been perfectly entitled to refuse relief from sanctions.
  3. As I have said Southwark did not appear at the appeal to defend the judge’s decision on its counterclaim. For the reasons Mr Salis has advanced, it seems to me that the appellant succeeds on this point.

OTHER POSTS ON THE LATE SERVICE OF WITNESS STATEMENTS

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