BIFFA WASTE SERVICES: RELIEF FROM SANCTIONS: FULL TRANSCRIPT NOW AVAILABLE
Biffa Waste Services Ltd –v- Ali Dinler  is a case where the judge, on appeal, overturned an earlier order granting relief from sanctions. The full transcript is now available and is notable for its detailed consideration of the principles “post-Jackson” applications for relief from sanctions.
This was a road traffic accident where a number of claimants were claiming damages for personal injury.
THE CLAIMANTS’ DEFAULTS
The claim was allocated to the fast track and standard fast track directions were given. However the claimant’s failed to comply with directions:-
(1) They failed to file their pre-trial check list by the due date. Nor did they pay the pre-trial check list and hearing fees.
(i) Consequently an unless order was made and the claimants subsequently filed their pre-trial checklist, 27 days after the original deadline and within two hours of the new deadline.
(ii) However the listing and hearing fees were not received by the court office until after the deadline. The claim was therefore automatically struck out.
(2) The claimants failed to file the witness statements accordance with the directions. They were eventually served 63 days late, on the day before the trial.
(3) Three other witness statements were also served late. Although the claimant contended they were only 44 days late. The defendant stated that they only received these additional statements one day before the trial.
(4) The claimants’ solicitors failed to make any attempt to agree the contents of the trial bundle with the defendant’s solicitors. They filed and served the trial bundle one day before trial; it comprised 540 pages and contained irrelevant and unnecessary material.
THE DECISION AT FIRST INSTANCE: RELIEF FROM SANCTIONS GRANTED AT TRIAL
At trial the defendant raised the issue of the automatic strike out. In response the claimants made an application for relief from the automatic strike out and sought permission to rely on the oral evidence from the claimants’ witnesses whose statements had been served late.
The judge gave relief from the sanction of strike out and gave the claimants’ permission to rely on oral evidence from their witnesses. He said this was a “very close call”. He noted the difficulty in which the defendant had been placed by the late service of the witness statement, but felt that an order requiring the claimants to pay costs of the adjournment on an indemnity basis would “do sufficient justice”.
THE APPEAL TO MRS JUSTICE SWIFT
The defendant subsequently appealed the decision and it was heard by Mrs Justice Swift. . In giving her judgment the judge considered the relevance of the change to CPR 3.9.
RELIEF FROM SANCTIONS – CONSIDERATION OF THE NEW LANDSCAPE
Mrs Justice Swift considered the changes brought about by the Jackson Reforms. She stated:
“19. On 1 April 2013 the so-called “Jackson Reforms” came into effect bringing with them what is intended to be a significant change in the courts‟ attitude to non-compliance with the rules and with court orders so as to ensure that cases are conducted at proportionate cost to the parties and do not expend more than a proportionate amount of the court’s time and resources. To that end significant changes were made to the definition of the overriding objective in CPR 1.1 which now requires cases to be dealt with both “justly” and “at proportionate cost” and providing that dealing justly includes “enforcing compliance with rules, practice directions and orders”.
20. In addition, CPR 3.9, the provision dealing with relief from sanctions, has undergone extensive amendment. Previously, it had required the court to consider all the circumstances of the case, including a long check list of considerations mainly associated with the individual case under consideration. That check list has now gone….
21. The new provision refers back to the amended overriding objective and makes clear that, in considering whether or not to grant relief from sanction, a judge must consider, not only the immediate case before him or her, but also the wider issue of court time and resources.
THE CORRECT APPROACH ON AN APPLICATION FOR RELIEF FROM SANCTIONS
She went on to consider the various cases dealing with the new test for relief from sanctions and highlighted the correct approach when considering appeals on the issue:
“In approaching the appeal, I bear in mind that the decision whether or not to grant relief from sanctions in an exercise of discretion, involving as it should do the balancing of a number of factors which militate on one side or the other. I bear in mind also that an appeal court should interfere with the exercise of direction by the first instance judge only if that judge has made an error of principle or is plainly wrong… even within the new stricter regime, there remains room for the exercise of flexibility and discretion on the part of judges in the light of the circumstances of the particular case under consideration. ”
DEFENDANT’S APPEAL ALLOWED: RELIEF FROM SANCTIONS REFUSED
She described what had happened in the case as “a wholesale and flagrant disregard by the claimants’ solicitors of the directions made by the district judge”. She concluded that the original judgment has a number of serious defects and allowed the appeal:
(1) The judge failed to direct himself on the principles which he should apply when determining the application for relief from sanctions.
(2) There was no evidence that he had in mind the need to enforce compliance with riles, directions and court orders of the need for proportionality.
(3) Compliance is now referred to in the overriding objective which underpins the conduct of civil litigation and provides the basic principles of civil litigation.
(4) The judge did not carry out the exercise of balancing the various factors. He identified many of the claimant’s failures but did not address any factor which militated in their favour.
(5) Mrs Justice Swift accepted that the late payment of court fees may be considered as falling at the lower end of the spectrum of non compliance. But the same could not be said of the claimants’ solicitors’ failure to file their pre-trial checklist.
“Taking all those matters into account and having regard, as he plainly should have done, to the amendments introduced into the CPR on 1 April 2013 with their emphasis on compliance with the rules and court orders and on the need to ensure that cases are conducted at proportionate cost to the parties and do not expend more than a proportionate amount of the court’s time and resources, I am satisfied that this was clearly a case in which relief from sanctions should have been refused and that the judge erred in granting such relief. The judge himself observed in his judgment that his decision was “a very close call”. It seems to me that if he had had regard to the principles to which I have referred his decision would inevitably been different.”
A report is available on Lawtel.
The case was discussed earlier at http://civillitigationbrief.wordpress.com/2013/10/11/relief-from-sanctions-order-overturned-on-appeal-another-case-goes-to-waste/