THE CONSEQUENCES OF CHARTWELL 4: APPEAL AT YOUR OWN RISK

This is the fourth in the series that discusses the consequences of Chartwell. The first discussed the importance of serving witness statements; the second the effect on the criteria for relief from sanctions; the third looked at the litigator’s dilemma. Here we look at what the case had to say in relation to the appeal criteria when a litigant is dissatisfied with a decision in relation to relief from sanctions.

THE SITUATION PRIOR TO CHARTWELL

Prior to Chartwell virtually every appeal in relation to sanctions had been in favour of sanctions being imposed. The Court of Appeal in Mitchell upheld the Master’s decision to assess future costs as nil. In Durrant the Court set aside the order of the judge granting relief from sanctions, a similar decision was made in Thevarajah –v- Riordan [2014] EWCA Civ 15.

THE DECISION IN CHARTWELL

In Chartwell the Court of Appeal upheld the decision of the original judge. In doing so Davis LJ made the following observations:-

  1. I would also wish to repeat the point emphasised in  Mitchell  that appellate courts will not lightly interfere with a case management decision. Robust and fair case management decisions by first instance judges are to be supported. In the present case, Globe J had directed himself correctly. Mr Deacon’s submission that the judge had failed to adopt the necessary robust approach ultimately was an exercise in, as it were, self-certification. It in essence founded itself on the proposition that the judge had not been robust in the way enjoined by  Mitchell  just because the judge had not found in favour of the defendants and refused relief from sanction. That will not do. There may be cases where, although a judge purports to direct himself in accordance with  Mitchell , his approach thereafter does not comply with it. But that is not this case. The appellate courts will not interfere if a judge has correctly directed himself, has adopted the correct approach in principle and has taken all the circumstances into account. It is also to be emphasised that the courts in considering applications under CPR 3.9 do not have and should not have as their sole objective a display of judicial musculature. The objective under CPR 3.9 is to achieve a just result, having regard not simply to the interests of the parties but also to the wider interests of justice. As has been said by the Master of the Rolls (in his 18th lecture), enforcing compliance is not an end in itself. In the well-known words of Lord Justice Bowen: “The courts do not exist for the sake of discipline”. Such sentiments have not been entirely ousted by CPR 3.9, as to be interpreted and applied in the light of  Mitchell .
  1. Accordingly, the enjoinder that the Court of Appeal will not lightly interfere with a case management decision and will support robust and fair case management decisions should not be taken as applying, when CPR 3.9 is in point, only to decisions where relief from sanction has been refused. It does not. It likewise applies to robust and fair case management decisions where relief from sanction has been granted. If parties understand this then at least satellite interlocutory appeals should be avoided and at all events will get no encouragement from the appellate court.

SO APPEALS OF ANY TYPE ARE GOING TO BE DIFFICULT

In considering an application under CPR 3.9 a court is considering both the exercise of a discretion and a case management decision.  These have always been difficult decisions to appeal. The fact that a judge has exercised a discretion to grant relief from sanctions does not, in itself, represent grounds for an appeal. A prospective appellant has to show that the judge has not, in fact, complied with the Mitchell criteria. That criteria, in itself, has some flexibility and is not a total bar on relief from sanctions, as the Chartwell case itself shows.