THE DENTON CRITERIA AND DISHONESTY: TELLING A LIE MAY NOT BE “SIGNIFICANT” BUT IT IS ALWAYS SERIOUS.
I am grateful to John McQuater for sending me through a copy of the judgment of His Honour Judge Robinson in the case of Wadsley -v- Sherwood Forest Hospitals NHS Foundation Trust (a copy of that judgment is available here Wadsley Approved Judgment-1*). It involves the court considering relief from sanctions in a very unusual situation. An employee of the defendant’s solicitor had told lies about whether a court order had been complied with. Does the telling of lies have any impact on the way that the Denton criteria should be considered?
“It might be argued that a breach accompanied by a lie exacerbates a breach that would otherwise be treated as not serious to the level of serious. Alternatively a breach such as this accompanied by a lie concerning the circumstances of the breach escalates the breach to one where, even if not serious viewed in isolation, stages two and three of Denton are engaged in the sense that they assume greater importance.
If I had to choose one of those options I would opt for the second of those routes but, however one looks at it, in my judgment the breach is serious such that stages two and three of Denton are engaged and assume greater importance.”
In a clinical negligence case the defendant had obtained surveillance evidence of the claimant. Some footage was sent to the claimant’s solicitors in June 2016. On the 14th July the defendant was ordered to serve all footage and surveillance evidence by the 20th July 2016. The footage evidence was served on the 20th July 2016, the evidence in support was not. The defendant’s solicitor sent the witness evidence on the 29th July 2016.
We have, therefore, a nine day delay in compliance for service of witness evidence, with the video evidence served in time. There is a breach here. However I suspect that even the most Mitchellesque inclined judge (on a grumpy day) would have little difficulty granting relief from sanctions. Indeed some judges may have some firm words to say about the claimant taking the point.
The claimant’s solicitors took the point that the statements had not been served. The defendant’s solicitor asserted they had been. The claimant’s solicitor asked for a copy of the email sending the statements. The defendant’s solicitor stated that the email had not been retained because it was “too large”.
The difficulty here was that nothing that the defendant’s solicitor was saying was true. The witness statements had never been sent. The person charged with sending it had misunderstood their instructions and sent the video but not the statements.
This came to light following an internal investigation by the defendant’s solicitors. The errant solicitor was subject to disciplinary proceedings and dismissed in early October 2016. This meant that the defendant had to concede that the order had not been complied with. On the 7th October 2016 the defendant made an application for relief from sanctions.
(I should make clear that the firm of defendant solicitors involved were appalled when they discovered what had occurred. They acted with total probity once it was found out.)
DENTON AND DISHONESTY
The judge considered whether this case should be considered as a simple “nine day delay” case or whether it gave rise to wider considerations. He found that the telling of lies was “serious” even though it may not have had any direct impact on the conduct of the litigation.
“11. Mr Marvin for the defendant says I should not look beyond the simple fact that there was a delay of nine days in the service of part of the evidence which has had no effect whatsoever on the conduct of the litigation. It is true that the breach has had no discernible effect upon the conduct of the litigation, however I think it relevant to recite what I consider to be the relevant email traffic in this case.”
The judge then considered a lengthy chain of emails in relation to the failure to serve on time and the initial, dishonest, assertions that they were made in relation to compliance.
“18. As is clear from that last letter the application presently before me was sent that day. It is also clear that although the progress of the litigation has not been adversely affected the claimant’s solicitors were put to trouble in following up the lie told by the now dismissed solicitor.
19. Mr Marvin has made it clear from the outset that the actions of the now dismissed solicitor were wholly unacceptable. He roundly criticises them and does not seek to defend them. That approach is entirely correct and entirely in keeping with what I would expect of a highly reputable firm of solicitors such as the defendant’s solicitors.
20. The issue for me is whether I can treat the relevant breach in isolation from the circumstances immediately surrounding the explanation for the breach given by the now dismissed solicitor. In one sense I cannot un-know what I now know, but I can ignore it. The question is whether that is the correct approach.
21. The code contained within Denton is directed to the proper conduct of litigation. The now dismissed solicitor clearly lied to the claimant’s solicitor. In my judgment I cannot look at the breach in isolation from the excuse made in the immediate aftermath of notification by the claimant’s solicitors that there had been no service of part of the evidence. I refer back to the end of paragraph 26 in Denton;
“But it leaves out of account those breaches which are incapable of affecting the efficient progress of the litigation although they are serious.”
22. And also 28;
“If a judge concludes that a breach is not serious or significant then relief from sanctions will usually be granted and it will usually be unnecessary to spend much time on the second or third stages. If, however, the Court decides that the breach is serious or significant then the second and third stages assume greater importance.”
23. It might be argued that a breach accompanied by a lie exacerbates a breach that would otherwise be treated as not serious to the level of serious. Alternatively a breach such as this accompanied by a lie concerning the circumstances of the breach escalates the breach to one where, even if not serious viewed in isolation, stages two and three of Denton are engaged in the sense that they assume greater importance.
24. If I had to choose one of those options I would opt for the second of those routes but, however one looks at it, in my judgment the breach is serious such that stages two and three of Denton are engaged and assume greater importance.
25. Stage two requires the Court to engage in what is in itself a two stage process. First what is the reason for the breach? Second, is the reason a good reason? I know little about the reason for the breach, I have recited all I have been told. In the original application this was all that was said;
“4. The defendant’s solicitors email system holds a record of all electronic communications over the past 10 years and, following subsequent review of our electronic records, it has become evident that in error the statements were not served on 20th July 2016 and therefore service not effected until 29th July 2016 and filing was not effected until 5th August 2016 in contravention of the Court’s order.”
26. The claimant’s solicitors asked pertinent questions that were initially rebuffed. It was not until a letter dated 14th November 2016 that a substantive response was received, (page 157). By that letter the defendant’s solicitors effectively said that the statements had not been sent by email on 20th July and that there had been no such email of that date. Further information was given concerning the disciplinary process which had led to the dismissal of the person I have been referring to as the now dismissed solicitor.
27. It does not seem that any question was asked which would have elicited the response that a legal assistant had misunderstood delegated instructions but neither was that information volunteered.
28. Turning to the misunderstood instructions I do not know if the instruction was given orally or in writing. More importantly I do not know its terms, thus I cannot make any judgment whether the instruction was vague or ambiguous. I know nothing about the level of competence of the legal assistant to whom the task was delegated so I cannot make a judgment whether the task was one which ought to have been assigned to a higher grade employee or to a person of more experience. In short I find the degree of candour accompanying this particular application to fall short of what I would have expected.
29. I am driven to accept at face value the bald assertion made in paragraph 15 of the witness statement made by Mr Armstrong. It is supported by a statement of truth. In my judgment I cannot go behind it. A simple misunderstanding of instructions may or may not be capable of amounting to a good reason. In this case I do not know what those instructions were and so it is difficult, to say the least, to seek to assess the culpability of the misunderstanding. This is a borderline case but I am just prepared to accept that human error amounts to a good reason in this case.
30. Thus I turn to stage three of the Denton process and look at all the circumstances of the case. Of relevance is that the raw surveillance footage had been delivered in June 2016 before the order of 14th July 2016 and also that the raw surveillance footage was again properly served in time. The delay in completing performance of the order of 14th July was short. The progress of the litigation
has not been compromised. I do however find that the claimant’s solicitors were put to trouble in investigating the explanation given by the now dismissed solicitor.
31. However, balancing all the factors including those in CPR Rule 3.9 and having regard to the overriding objective, I determine it is appropriate to grant relief from sanctions and to excuse the lateness of service of the written part of the evidence.
32. However I must make this absolutely clear; there has been a suggestion that the claimant’s solicitors were unreasonable in refusing their consent to the granting of relief from sanctions in this case. In some cases such consent should be given or at least no opposition made because it would be absolutely correct to do so. In this case it was equally absolutely correct to decline to give such consent. The conduct exposed in this instance was serious. The information given to the claimant’s solicitors, even as late as 7th October, was scant. It was necessary for the Court to proceed to stages two and three of the Denton process and, whilst I have not explicitly dealt with the issue of whether the application in this case was made promptly, it just about satisfied that requirement, if there was a genuine belief on the part of the claimant’s solicitors that it would not be appropriate to commence this application before the disciplinary process had been complete, but that again is a borderline finding. In the event the application succeeds.”
*I should add that I was instructed by Mr McQuater in an (unsuccessful) application to the High Court for permission to appeal this judgment.