ANOTHER COURT OF APPEAL CASE ON RELIEF FROM SANCTIONS : DURRANT –V- CHIEF CONSTABLE OF AVON & SOMERSET CONSTABULARY
In the first relief from sanctions case to reach the Court of Appeal since Mitchell, the Court of Appeal reiterated the tough new approach which courts should taken when considering relief applications.
The Claimant brought a claim against the Defendant and its officers for false imprisonment, assault and various other breaches of the Human Rights.
The Defendant failed to comply with the directions for exchange of witness statements on a number of occasions:
(1) The Defendant served two witness statements a day after the court deadline.
(2) They subsequently tried to serve a further four statements and made an application for relief from sanctions, two months after the original deadline.
(3) Five days before the trial the Defendant made a further application for relief from sanctions, so as to allow two more officers to be called as witnesses.
On the morning of the trial the judge granted the Defendant relief from sanctions and the trial was adjourned to give the Claimant time to consider the Defendant’s evidence.
THE JUDGMENT
The Court of Appeal allowed the Claimant’s appeal. They concluded that the initial judge had granted relief from sanctions in circumstances which did not justify relief under CPR 3.9.
THE DECISION IN MITCHELL SHOULD NOT BE UNDERMINED
Lord Justice Richards began by considering the effect of Mitchell :
“[38]The judgment in Mitchell reiterated (at para 52) that this court will not lightly interfere with a case management decision. It quoted the observation of Lewison LJ in Mannion v Gray [2012] EWCA Civ 1667, para 18, that “it is vital for the Court of Appeal to uphold robust fair case management decisions by first instance judges”. Equally, however, if the message sent out by Mitchell is not to be undermined, it is vital that decisions under CPR 3.9 which fail to follow the robust approach laid down in that case should not be allowed to stand. Failure to follow that approach constitutes an error of principle entitling an appeal court to interfere with the discretionary decision of the first instance judge. It is likely also to lead to a decision that is plainly wrong, justifying intervention on that basis too. We do not share Mr Payne’s concern about this leading to an increase in appeals and thereby undermining the efficiency benefits of the Jackson reforms. As is stated at para 48 of the Mitchell judgment, “once it is well understood that the courts will adopt a firm line on enforcement, litigation will be conducted in a more disciplined way and there should be fewer applications under CPR 3.9. In other words, once the new culture becomes accepted, there should be less satellite litigation, not more”.
THE STARTING POINT IS TO CONSIDER THE SANCTION ORIGINALLY IMPOSED
[40] First, we do not think that the judge had sufficiently in mind that the sanction imposed by Mitting J’s order of 26 February 2013, that the defendant might not rely at trial on the evidence of witnesses whose statements had not been served by the specified date, was itself a proportionate sanction which complied with the overriding objective. It had to be taken to be such in the absence of an appeal against the order or an exceptional application to vary or revoke it (see Mitchell para 44); but in any event the factual history set out above serves amply to confirm that the sanction was correctly imposed. Thus, as was observed at para 45 of the judgment in Mitchell, “the starting point should be that the sanction has been properly imposed and complies with the overriding objective”.
THE TWO CONSIDERATIONS SPECIFICALLY MENTIONED IN THE NEW RULE ARE THE MOST IMPORTANT FACTORS
The Court of Appeal reiterated that the need for litigation to be conducted efficiently and at a proportionate cost, and the need to enforce compliance, are the two key considerations in any relief application.
“although the judge purported to proceed on the basis that a “much stronger and less tolerant” approach was required under the new CPR 3.9 towards failures to comply with time limits, it is evident that he did not approach the exercise with the focus or degree of toughness called for by the guidance in Mitchell. He went through the old checklist of factors in the superseded version of CPR 3.9 before coming to the two considerations specifically mentioned in the new CPR 3.9 (the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with rules, practice directions and court orders) and then returning to consider further “all the circumstances of the case”. He did not appreciate that the two considerations specifically mentioned in the new rule are the most important considerations and should be given greater weight than other factors (see Mitchell paras 36-37 and 49). Nor did he appreciate how much less tolerant an approach towards non-compliance with rules, practice directions and orders is required by the new rule.”
THE DEFENDANT’S BREACHES COULD NOT BE CLASSED AS TRIVIAL
Taken as a whole, the Defendant’s failure to serve witness statements had had a very detrimental effect on the proceedings and led to a waste of court time
42.“the non-compliance was on any view serious: four of the statements were served in mid-May, over two months after the deadline, and the remaining two were served in early June, only a few days before the trial. The two applications for relief from sanction, on 15 May and 5 June respectively, were equally late. They were so late that they had to be heard on the first day of the trial, making it very likely that the trial would have to be adjourned if the applications were granted; and in the event an adjournment was ordered as a result of the grant of relief. Even if on this occasion, as Mr Payne told us, it was possible to fill the vacated trial slot with other business, the adjournment of a lengthy trial and the need to relist it for another date is detrimental to the efficient conduct of litigation.
THE DEFENDANT FAILED TO PROVIDE A GOOD REASON FOR THE BREACHES
“43. The explanations given in support of the applications for relief (paras 19-20 and 23 above) did not get near to providing a good reason for non-compliance. On the contrary, in the light of the previous history they rang very hollow indeed. As long ago as March 2012 the defendant had identified that he was likely to call eight witnesses and had invited the court to make a direction for exchange of witness statements in May 2012 (see para 12 above), all of which makes the subsequent delays very difficult to understand. ….. The failure to meet the final deadline was not the result of any unforeseeable event. It was due to incompetence, as Judge Birtles found, and was simply inexcusable.”
PUBLIC INTEREST AND THE EFFECT OF THE CASE ONLY HAVE A LIMITED ROLE IN RELIEF FROM SANCTIONS
Lord Justice Richards also expressed that Judges should not be overly concerned with the impact and seriousness of the case when considering whether to grant relief.
44. In reaching his decision, Judge Birtles placed particular weight on the potential effect on the careers and reputations of individuals and the police force if the officers concerned were unable to give evidence, and on the public interest in scrutinising the actions of police officers in the light of all of the evidence from both sides. In our judgment, however, considerations of that kind have only a limited role to play in the context of relief from sanction. They may be relevant to the question of how much time should be allowed for service of witness statements in the first place, and even to the question of what sanction should be imposed for failure to meet the deadline; but once the court has determined both the deadline and the sanction applicable for failure to comply, we do not think that such considerations can properly carry much weight in determining whether to grant relief from the sanction for non-compliance.
NON COMPLIANCE SHOULD BE SEEN AS A WHOLE
Relief from sanctions will not be granted for trivial breaches, if there are other significant breaches and an application for relief is not made promptly :
“48. As we have said, the non-compliance in relation to the two statements, taken by itself, might be characterised as trivial, as an instance where “the party has narrowly missed the deadline imposed by the order”. The non-compliance becomes more significant, however, when it is seen against the background of the failure to comply with Lang J’s earlier order, and the fact that Mitting J, in extending that deadline, had seen fit to specify the sanction for non-compliance.
49. Moreover, even in relation to trivial non-compliance, the judgment in Mitchell states that “the court will usually grant relief provided that an application is made promptly” (emphasis added). The application in this case was not made promptly; far from it. Nothing was done about the non-compliance for over two months, until the application for relief dated 15 May, which covered the two statements served in March as well as the four additional statements then sought to be relied on. By that time the trial, fixed for 10 June, was imminent. Unless and until relief from sanction was obtained, the claimant could not be expected to prepare to deal with the evidence of witnesses whose statements had been served out of time. She was entitled to proceed on the basis that, as provided in Mitting J’s order, the defendant could not rely on the evidence of any witness whose statement had not been served by the deadline. It is, moreover, of considerable significance that she had protested loudly that the statements were late. There can be no question of the defendant having been lulled into a false sense of security; and it was immediately obvious that an application for relief against sanctions would have to be made. This makes the delay all the more inexcusable.”
DISCUSSION
It is clear that relief from sanctions will only be granted in exceptional circumstances; a trivial breach, where there has been minimal disruption to proceedings, and when the application for relief is made promptly.
This case reiterates many of the points made in Mitchell, especially the need for a prompt application.
LINKS TO THE CASE