HISTORIC AGREEMENTS TO EXTEND TIME: WHAT IS THE APPROPRIATE APPROACH OF THE COURT? CAROLINE MAEVE MEEHAN -v- JOSEPH MANLEY & CHURCHILL INSURANCE COMPANY LIMITED
The decision in Lloyd that it was not open to the parties to agree to extend time can cause a problem in relation to cases where service of documents has taken place late by agreement. This was a common occurrence in litigation. I am grateful to Colin Ettinger of Irwin Mitchell for providing me with a note of the judgement of Master Leslie in the case of Meehan –v- Manley a decision made on the 29th January 2014.
BACKGROUND TO THE CASE
This was a major personal injury case proceeding in the High Court. Under the directions The parties were to serve lay evidence on the 21st June 2013. However an informal extension was agreed by the parties and the claimant served their evidence between the 4th July and the 14th August.
The matter proceeded to a CMC on the 4th November 2013. Neither party raised the issue in relation to the lay evidence and the point was not taken up by the court.
On the 23rd January 2014 the Defendant informed the claimant that they were taking issue with the claimant’s late service of witness evidence at the upcoming CMC on the 29th January 2014.
THE CLAIMANT’S ARGUMENTS
At the CMC the claimant’raised the following arguments :
(1) This was a historical breach which was acquiesced in by the defendants. Therefore they were almost estopped from opposing any application for relief. Costs had been expended on both sides with experts having taken into account the statements as evidence and this therefore took the factual matrix outside of a Mitchell scenario
(2) But for the stay on the CMC in November, further directions would have been given which would have superseded any non-compliance.
(3) The defendant had only raised this point four days before the CMC. Prior to this the matter had proceeded and medical reports had been served.
(4) The witness statements were lengthy; beyond 300 pages. They were all served within a few weeks. The defendant’s experts had had sight of these as well. There was no negative impact from the breach.
(5) The Defendants were, in essence, using the Mitchell decision to review historic breaches.
THE DEFENDANT’S ARGUMENTS
The Defendant referred the master to the authority of Karbary I, M A Lloyd and Mitchell. They made reference to the consequences of failing to serve a witness statement set out in CPR 32.10 and the principle outlined in M A Lloyd v PPC International that even if the parties had agreed an extension, the court had to adjudicate on it and agree it for it to be valid.
In relation to the Mitchell criteria the defendant argued that the claimants had not made an application for relief from sanctions promptly and that it was not a trivial breach as the claimant had missed the deadline by six weeks. They also set out that no good reason had been given for the breach.
In addition the defendant raised general arguments about the changes to the civil procedure rules. The claimant solicitors new that the changes in the CPR were coming and that compliance was the most important factor. It was no longer automatic that doing justice between the parties should prevail.
THE MASTER’S ORDER
The Master granted relief from sanctions. In reaching his conclusion he made the following observations on the effect of Mitchell:
“No doubt, signalled by the Court of Appeal in Mitchell, this has sent seismic convulsions through the litigation lawyer profession since 27 November 2013. The litigation culture has changed and indeed the Court of Appeal recognise this in particular at paragraph 46 ……. In this case, I ordered the exchange of witness statements to take place by 21 June 2013. According to Rule 32.10” ……..
What does that mean? What does it say? Does it in fact debar the Claimant from relying on written witness evidence? Is it that witnesses may not be called to give oral evidence at trial?
He then went on to consider the new culture which the Jackson Reforms had brought to civil litigation :
Having said that, the new culture from April 2013 makes it plain that a Court Order must be complied with. The Court of Appeal guidance in Mitchell suggests that if a deadline has not able to be met, the party will have to apply for an extension and will receive far more sympathy for the Application before the deadline has passed.
It, perhaps, should have been obvious as of 1 April 2013 but plainer still in this corridor that parties felt the seismic convulsions after Mitchell was decided by the Court of Appeal. Here, by my Order, the witness statements were due on 21 June when, in fact, they were served between 4 July and finally 14 August.
He then considered the particular facts of the current case in line with the new change in culture :
It is obviously plan that the witness evidence is voluminous, running in excess of 300 pages but some were signed up to a year earlier.
There was little or no good reason for the lateness of service and it is right to say that the failure to serve in time acquiesced by the Defendants, not only at the time (6 weeks between July and August 2013, ante-dating Mitchell) which was then promulgated to the Defendants’ experts to consider, meant that the witness statements had formed part of the evidence.
At the hearing considered for relief for the late service of expert report, no mention was made on 4 November 2013, that the Claimant was in breach of this Order and would be required to apply for relief for late service of the lay evidence as well.
Maybe I do not recall this, but no mention that relief was needed was made.
The decision in Mitchell comes and goes in late November and here the Claimant is historically in breach of an Order and does not make an Application. For relief from sanction (no sanction having been imposed) time passes. With today’s hearing approaching, the Defendants, 4 days before the hearing, put the Claimant on notice that relief would be required.
Mr Cooksley for the Claimant acknowledges that there was a breach and that relief would be required.
Although I am not entirely sure what the sanction is under CPR 32.10 as to whether or not it is the case that no reliance on the statements can be had at all, or whether it is simply oral evidence.
In any event, Mr Russell QC for the Defendant relies on two decisions of Turner J which both post-date Mitchell and I am quite satisfied that the breaches in those two cases occurred after the Mitchell decision and were, in fact, entirely different. In those cases, the defaulting party was in flagrant breach and, frankly, in light of the Mitchell decision it was very cheeky in the extreme for them to apply for relief. Here, it is a completely different matter. In this case the Defendant acted in an opportunistic way. The Defendant set out to take advantage of the Mitchell decision applying what I would call the “retrospectoscope” on past events. It has to be borne in mind that in the summer of 2013, although we all knew about the change in the culture, even the Court of Appeal acknowledged that it would take some time for that change in culture to take place. No-one realised the full extent of the new Rules and how those new Rules were to be applied in practice. The Defendant didn’t either and if they had done, they would have taken advantage of the Claimant’s solicitors mistake in not applying before the deadline had passed for an extension.
If the Claimant failed to be granted relief today, procedure would, in fact, become the mistress rather than the handmaiden of justice. If all of these matters had occurred after Mitchell and the if the Defendant had taken the point and not acted in the way that they did, there was some justification in Mr Cooksley QC’s argument that the Defendants were now estopped from arguing the point as they had accepted the witness evidence. The Claimant took the view, wrongly, that there was no need to apply for relief because no-one took the point. The Defendants then took the point and leave really needed to be sought.
Although there is no reason given for all late service, there is a reason for Dr Meehan’s late service of her statement as she was facing some difficulties and needed to preserve her career. This was one of the reasons why the Stay was imposed at the last hearing.
For all of those reasons, the Claimant is entitled to be granted relief from sanction which may arise and therefore the Claimant has permission under 32.10, to call oral evidence of these witnesses of fact on a presumption that they would be required at trial.”
This is an important decision on an important topic. The question of “historic breaches” is raising real practical problems.