EWJ June 2024 web - Journal - Page 8
Court of Appeal Clarifies When a Party
in Breach of a Court Rule or Order
Must Apply for Relief From Sanctions
by Maura McIntosh and Caroline Tuckwell at Herbert Smith Freehills LLP
The Court of Appeal has found that a claimant did
not need relief from sanctions under CPR 3.9 where
it made a late application for permission to rely on additional expert evidence. This contrasts with the position for witnesses of fact, where the rules contain an
express sanction for failing to serve a witness statement on time, and therefore relief from sanctions is
required if a party wants to call a witness whose statement was served late: Yess (A) Electrical Ltd v Warren
[2024] EWCA Civ 14.
On 22 February 2022 the claimant applied for
permission under CPR 35.4(1) to rely on a report
from a pain management expert. A few days later, the
trial was listed for September 2022, but the claimant
applied to vacate the trial due to the unavailability of
its witnesses. (Dates on which the witnesses were unavailable had been notified to the court but had been
overlooked due to an administrative error.)
The district judge granted both applications. He held
that the requirement to obtain relief from sanctions
under CPR 3.9 did not apply to the late application
to call a new expert and so the matter was to be decided in accordance with the overriding objective. The
judge noted the claimant’s acceptance that the application was late but said it was not “very late” because,
as a result of the trial date having just been vacated,
the application would not cause a trial date to be lost.
He also gave permission to appeal on the relief from
sanctions ground.
In a number of cases, the courts have held that
sanctions should be implied for breach of certain court
rules and orders where there is no express sanction,
so that parties in breach must apply for relief from
sanctions under CPR 3.9 and the three-stage test set
out in the Court of Appeal's leading judgment in
Denton applies. It has, however, been far from clear
how far this principle extends, and when the court will
(or will not) imply a sanction where a rule or court
order is silent. The Court of Appeal’s judgment in this
case is therefore welcome in suggesting that the courts
will be hesitant to expand the principle beyond the
two examples identified in the case law to date,
namely the failure to file a notice of appeal or a
respondent’s notice on time.
The defendant’s appeal to the circuit judge was
dismissed, but the defendant was given permission for
a second appeal.
Decision
The Court of Appeal dismissed the appeal, finding
that the application was not one to which CPR 3.9 applied. Birss LJ gave the leading judgment with which
Males and Asplin LJJ agreed.
Nonetheless, the decision makes it clear that, even
where there is no need for relief from sanctions, the
court will still exercise its case management powers to
further the overriding objective of dealing with cases
justly and at proportionate cost. This includes an emphasis on compliance and the need to conduct litigation efficiently, which means the courts have become
less tolerant of delays than previously. Parties should
therefore be mindful of the risks of seeking late permission to take a step in the proceedings regardless of
whether the application is one to which the relief from
sanctions regime applies.
In what circumstances is CPR 3.9 engaged?
Birss LJ started by considering the relevant rules on
relief from sanctions, namely:
l CPR 3.8(1) “Where a party has failed to comply
with a rule, practice direction or court order, any
sanction for failure to comply imposed by the rule,
practice direction or court order has effect unless the
party in default applies for and obtains relief from the
sanction.”
Background
The claimant started proceedings for personal injury
against his employer, the defendant, in October 2019.
l CPR 3.9(1) “On an application for relief from any
sanction imposed for a failure to comply with any rule,
practice direction or 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.”
A Case Management Conference (CMC) took place in
October 2020. The claimant had already obtained
four reports from an orthopaedic surgeon. The district judge gave the claimant permission to rely on
those four reports, and the defendant permission to
rely on a report of their own orthopaedic surgeon.
The claimant’s expert’s fourth report said he thought
the opinion of a pain management expert should be
sought, but no point was made about this at the
CMC so no permission was sought or given for a pain
management expert.
EXPERT WITNESS JOURNAL
The critical starting point is the existence of a breach
of a rule, practice direction or order: if there has
been no such breach then the relief from sanctions
provisions under CPR 3.9 do not apply.
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JUNE 2024