SURVIVING MITCHELL A PRACTITIONER’S GUIDE 2: ASSUME EVERY ORDER OF THE COURT IS A PEREMPTORY ORDER.
Some of the cases on sanctions reported this week have been highly disturbing; with cases being struck out on the morning of the trial because the bundles were not lodged three days earlier. As a result the only safe assumption for all practitioners is that all court orders and directions should be regarded as peremptory orders.
THE REASON WHY CAUTION IS NEEDED
Many court orders are not stated to be peremptory orders and there may be an argument that if these orders are not followed then there is no “breach” which requires relief from sanctions. However, at present, there is a dangerous assumption. Look at the case reported at http://civillitigationbrief.wordpress.com/2013/12/12/more-mitchell-mayhem-case-struck-out-at-trial-for-bundle-being-delivered-late/ where the bundle was delivered late but the parties, and judge, were ready to go on the morning of the trial. The case was still struck out.
THE SANCTION MAY NOT BE APPARENT ON THE FACE OF THE ORDER
Further the sanctions may not readily be apparent from the order. For instance the late service of expert evidence was held to require an application for relief from sanction by Mr Justice Haddon-Cave in Dass –v- Dass  EWHC
In my judgment, this is a relief from sanctions situation. CPR 35.13 provides:
“A party who fails to disclose an expert’s report may not use the report at trial or call the expert to give evidence orally unless the Court gives permission.”
Where a party has failed to comply with an order that experts’ reports be disclosure by a particular time this triggers the automatic sanction under CPR 35.13. To prevent the sanction operating there has to be an application for an extension, which has not been made in this case.”
THE SERVICE OF WITNESS EVIDENCE: THE STANDARD DIRECTIONS
Looking at the standard directions for the service of witness statements, these provide, expressly, for a sanction.
1) “Evidence of fact will be dealt with as follows:
a) by 4pm on xxxx all parties must serve on each other copies of the signed statements of themselves and of all witnesses on whom they intend to rely and all notices relating to evidence.
b) Oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late, except with permission from the Court.”
FORGET ALL ASSUMPTIONS ABOUT THE “EXCHANGE” OF WITNESS EVIDENCE
Practitioners, traditionally, refer to the “exchange” of witness evidence. It is important to note that there is no such word in the rules. The parties must “serve on each other”. It is highly unwise for a party to assume that, because it is ready and the other party is not, that it need not serve.
In Fons HF –v- Corporal Ltd & Pillar Securitisation  EWHC 1278 (Ch) Judge Pelling QC heard an application where the claimant was ready for exchange and the defendant was not. The judge held that both parties were in breach. The order for directions did not order that witness statements be mutually exchanged but that each party was to serve on the other party the witness statements upon which the serving party intended to rely.
The judge stated that it was the duty of the claimant to “serve the witness statements or at the very least lodge them at court and either offer them for exchange or provide them to the defendants in escrow in a sealed envelope explaining to the court at the time why that step was taken.”
The judge stated that he was “only persuaded to extend the time for the filing of witness statements because this hearing is taking place only a very short time after the amendment of the CPR and because the period that has elapsed since the final extension expired is relatively short.”
A clear warning was given
“However, all parties and the wider litigation world should be aware that all courts at all levels are now required to take a very much stricter view of the failure by parties to comply with directions, particularly where the failure to comply is likely to lead into a waste of the limited resources made available to those with cases to litigate”
WOULD THE SAME DECISION BE MADE POST-MITCHELL?
It appears clear beyond doubt that, in a post-Mitchell situation, a judge would find that both parties were in breach and, If the Mitchell criteria were applied, both parties would be refused relief from sanctions.
SAFETY FIRST: HAS TO BE A LITIGATOR’S WATCHWORD
It is not clear that there is any specific sanction imposed in relation to the late filing of bundles. However the case I reported upon above is not the only one. Several people have contacted me on twitter to say they have had similar experiences.
RELATED POSTS IN THIS SERIES
- The first post in this series is at http://civillitigationbrief.wordpress.com/2013/12/10/surviving-mitchell-a-practitioners-guide-1-know-what-happened-in-mitchell-and-how-it-could-have-been-avoided/
RELATED POSTS IN RELATION TO SANCTIONS AND AVOIDING PROBLEMS
- All of the points in the “Jackson Survival Guide” remain apposite http://civillitigationbrief.wordpress.com/2013/08/23/litigation-after-jackson-a-10-point-survival-guide/
- The Fons case is discussed at http://civillitigationbrief.wordpress.com/2013/07/21/serving-witness-statements-late-an-extremely-dangerous-practice/ (remember this was a pre-Mitchell decision, the outcome may well have been different today).
- The doctrine of “safety first” is considered at http://civillitigationbrief.wordpress.com/2013/06/26/extensions-of-time-after-jackson-safety-first/