ANOTHER CASE STRUCK OUT BECAUSE WITNESS STATEMENTS WERE SERVED LATE

I am grateful to Michael Ditchfield of Kings Chambers for his sending me details of a recent appeal where the Circuit  Judge overturned a decision where, initially, relief from sanctions had been granted. This emphasises the point that, although the Court of Appeal may have not overturned the decision in Chartwell, the consequence of failing to serve witness evidence on time can be enormous. 

“Trigger date for Sanctions and Part 3.9

On the 7^th November 2013 the Defendant applied for a debarring order, the Claimant having failed by 24^th October 2013 to exchange witness statements but which the Defendant had done.

A Deputy DJ granted the order on 22^nd November 2013 without a hearing and which effectively ended the claim.

The Claimant served his statement on 26^th November 2013.

The Claimant did not appeal the Deputy’s order (despite its later assertion that the order was defective in not complying with Part 3.3(4) & (5) CPR) instead it sought, on 3^rd December 2013, relief from sanction.

The DJ hearing that application granted relief considering that:

(i)                 The Deputy’s Order was Draconian and which had not been the equivalent effect in “Mitchell”. Mitchell he said was thereby ‘distinguished’;

(ii)               The Claimant’s ‘oversight’, coupled with the solicitor’s acceptance of fault and sincere apology, accounted for relevant ‘circumstances’ sufficient to grant relief;

(iii)             The delay in making the application for relief was very short, being the period from 22^nd November to 3^rd December.

The Defendant appealed.

The DCJ agreed that:

(i)                 The Deputy’s failure to comply with CPR 3.3(5) was irrelevant as in effect the relevant sanction was in effect before that order was made and so it was the failure to serve a statement in time from which relief was required, not the Deputy’s later order;

(ii)               The grant of relief, in any event, could not be sustained:

1. The DJ had failed to endorse the new jurisprudence in “Mitchell” in both seeing ‘justice’ as a concept relevant only to the individual case and being concerned with the ‘effect’ of the order rather than its proportionality;
2. He wrongly saw “Mitchell” as a case on its facts as opposed to a case of principle;
3. The DJ, in considering ‘the circumstances’, had overlooked that oversight, without more, could not amount to a good reason for delay;
4. Having found that the statement was served ‘very late’ he could not then sustain a finding that the relief was sought promptly. The trigger date for sanction was 24^th October 2013 and not 22^nd November 2013;
5. He made no reference to the requirements of proportionality, efficiency or compliance and with which the Court was now principally concerned.

 The Order of the DJ was overturned, despite that this was a case management decision. The Claimant’s claim was effectively at an end.”