EWJ June 2024 web - Journal - Page 9
Birss LJ commented that, in some contexts, the
concept of “relief from sanctions” has been used simply as a label for the tougher approach to case management and compliance following the Mitchell and
Denton cases, but that is not the correct approach. The
courts do apply an approach to case management
which is less tolerant of delays and has a greater emphasis on compliance and the need for efficient conduct of litigation at proportionate cost. However, the
basis for that approach is not CPR 3.9 but the two
principles embedded in the overriding objective at
CPR 1.1(2)(e) and (f), which state that dealing with a
case justly and at proportionate cost includes:
requirement had been imposed as a sanction – such as
CPR 32.10 which provides that where a witness statement is served late the court’s permission is needed to
call the witness to give oral evidence at trial – there are
other cases where the need for permission is not intended as a sanction, for example, the general requirement for permission to amend statements of
case.
Was CPR 3.9 engaged in this case?
Birss LJ found that there had been two breaches by
the claimant, namely: (1) a breach of the requirement
in the allocation order to attend the CMC with the
dates of availability of all witnesses including experts;
and (2) a breach of the requirement in the CMC order
that applications for oral expert evidence be made in
the pre-trial checklists.
(e) allotting to it an appropriate share of the court’s
resources, while taking into account the need to allot
resources to other cases; and
(f) enforcing compliance with rules, practice directions
and orders.
He held, however, that CPR 35.4 was not a sanction
for the breaches identified. The fact the claimant
needed permission under CPR 35.4 to call a pain
management expert was not a consequence imposed
for a breach of a rule, PD or order: the requirement
for permission was imposed to control expert evidence. The claimant would have needed permission
even if it had complied with the allocation order and
brought the pain management expert’s dates to that
hearing. Therefore, the application was not an
application for relief from sanctions under CPR 3.9
Where a breach has been identified, the next question
is whether there is a sanction for that breach. CPR 3.8
and 3.9 do not create sanctions but rather apply when
a sanction already exists. Birss LJ identified three
scenarios where sanctions exist:
l express sanctions that are provided for in the rules
or the relevant order (eg a failure to file a witness
statement on time);
l implied sanctions where the court’s permission is
required to proceed, such as where a party has failed
to file a notice of appeal on time; and
Was the judge’s decision wrong applying the
overriding objective?
Finally the court considered the alternative ground of
appeal, namely whether the judge should have refused the application to allow the expert evidence taking into account the modern emphasis on compliance
and the need for efficient conduct of the litigation at
proportionate cost.
l cases where a further step has been taken in consequence of the breach, such as the entry of a default
judgment.
Birss LJ referred to Mark v Universal Coating & Services
[2019] 1 WLR 2376 (QB), in which Martin Spencer J
sought to identify the circumstances in which a breach
with no express sanction might attract an implied
sanction. His conclusion was that the answer depended on the significance of the circumstances the
applicant found themselves in for the purposes of the
litigation. Birss LJ said he sympathised with the attempt to explain the cases in which implied sanctions
had been identified, but could not agree with that approach as it was too uncertain.
Birss LJ conceded that the case was “very near the
line” given that the claimant should have raised the
need for a pain management expert at the original
CMC and the delay in so doing was very serious. However, he held that the judge’s decision to allow the late
evidence was within his wide case management discretion. The critical factor, which the judge had well in
mind, was that at that time there was no trial listed so
allowing the application would not vacate the trial or
disrupt any extant lists. Given those circumstances,
Birss LJ dismissed this second ground of appeal.
He added, however, that bearing in mind the importance of clarity in the procedural framework, the hurdle for identifying something as an implied sanction
must be a high one. The caselaw had identified only
two examples, namely, failure to provide a notice of
appeal and failure to serve a respondent’s notice, and
the scope for adding further implied sanctions to that
list “must be very narrow”. Since the overriding objective applies even when CPR 3.9 is not engaged, the
need for the court to extend this concept further was
likely to be very limited.
Authors
Maura McIntosh
Professional support consultant
+44 20 7466 2608
Caroline Tuckwell
Training support lawyer
+44 20 7466 2119
Birss LJ commented that, just because a rule, PD or
order provides that a party needs permission to take
a step, does not mean that that need for permission
has been imposed as a sanction for breach of something. While there were cases in which a permission
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