RELIEF FROM SANCTIONS: BUNDLES; EXPERT EVIDENCE AND LITIGANTS IN PERSON
The case of Nata Lee Ltd -v- Abid  EWCA Civ 1652 has already attracted attention following the observations the Court of Appeal make about relief from sanctions and litigants in person. However there are several important observations about procedure in this case.
The trial was a three day trial about trespass and a right of way. The claimants were represented by leading counsel and junior counsel, the defendant was represented by one of its directors. “The case raised a confusing mass of issues”.
1. Proper trial bundles always help (and never hinder)
2. A litigant in person does not have any special status in relation to procedural issues and relief from sanctions.
3. There may be cases where the fact that a litigant is in person has an effect on a procedural/relief from sanctions issue. However this is “on the margins”.
4. It is generally inappropriate to prevent a party from adducing an expert witness on the grounds that the witness may be biased. This is something that goes to weight.
5. It is generally inappropriate to prevent a witness giving lay evidence on the grounds that they may stray into giving expert evidence. This is something a trial judge can deal with.
NO TRIAL BUNDLE
Here is a major procedural surprise.
“There was no proper trial bundle, but a mass of documents, presented non-chronologically.”
If a litigant was paying for leading and junior counsel it is surprising that no-one thought in worthwhile preparing a proper trial bundle. After it is within living memory (that is just over 12 months ago) when courts were striking cases out if a trial bundle did not arrive on time. (This trial took place in November last year, shortly before these strictures hit the headlines).
It is possible, even probable, that the absence of proper documentation contributed to the problem that the judge had. This was, ultimately, of no benefit of all to the claimant given that the Court of Appeal overturned virtually every single finding of the judge at first instance. At the same time the court made it clear that its conclusions did “not diminish my appreciation of the difficulties which the judge had to surmount”
Someone, somewhere must think trial bundles are important because the post on preparing trial bundles was the most read post on this blog last year. It is one of the most read posts each day (including today). The poor preparation of trial bundles can extend the length of the trial enormously, see the observations of Mostyn J in J -v- J  EWHC 3654 (Fam).
SANCTIONS AND LITIGANTS IN PERSON
The discussion about sanctions took place in the context of a discussion in relation to the judge’s findings on trespass.
i) Trespass by encroachment of the new building and its foundations onto (a) Mr. and Mrs. Abid’s part of the yard and (b) onto the disputed land;
ii) Trespass by use of the new entrance into the residential parts of No. 99, across the disputed land, and;
iii) Trespass by the re-routing of drains, necessitated by the new development, under both the Abids’ part of the yard and the disputed land.
- If my Lords agree with my conclusion that the boundary dispute is to be resolved in favour of Nata Lee, then there can be no question of trespass on the disputed land, either by encroachment or by the use of the new doorway. Trespass must, by definition, be confined to that part of the yard falling within Mr. and Mrs. Abid’s paper title, at the western end of it.
- The judge resolved this issue in the Abids’ favour because she preferred the expert evidence of Mr. Calvert over that of Nata Lee’s expert. There is no appeal that, viewing those two experts as providing the only relevant evidence, she was wrong to do so. On the contrary, her judgment convincingly explains why she was right to do so. Mr. Calvert’s plan (annexed as Plan B to the Particulars of Claim) shows, if correct, that there was a small encroachment of the new building over part of the rear of the yard within the Abids’ paper title having a width of 0.24 metres in the east, and 0.21 metres in the west. Other evidence suggested a slightly larger encroachment by certain foundation pads, underground.
- The appeal on this point is that, in simply preferring Mr. Calvert’s expert evidence, the judge had by a case management decision on the first day of the trial, wrongly excluded what was arguably the best evidence in relation to this issue, namely measurements taken by a Mr. Shattock, both before and after the construction of the new building on No. 99 which, if correct, suggested that the encroachment of the building itself (rather than the foundations) was, at the Abids’ end of the yard, no more than one centimetre and therefore de minimis. Mr. Shattock was Nata Lee’s party wall surveyor for the purposes of the redevelopment of No. 99. Mr. Weekes submitted with force that ‘before and after’ measurements on the ground were inherently likely to be a more reliable measure of any encroachment than measurements taken from the 1963 Plan, scaled up and applied to a modern survey of the locus in quo.
- The question for this court is therefore whether the judge’s case management decision to exclude Mr. Shattock’s evidence of his measurements fell outside the broad discretion which this court habitually affords to a first instance judge. If it did, then Mr. Weekes accepted that the only remedy for his client would be a retrial of this issue.
- The case management decision to exclude Mr. Shattock as a witness had a long procedural pre-history during most, but not quite all, of which Nata Lee was without professional representation. It began with an order for directions on 26th November 2012 (following a hearing) which required factual witness statements by 11th January 2013, and which permitted the claimants (alone) to rely upon the expert evidence of Mr. Calvert, on the basis that his report had already been served. It permitted questions of Mr. Calvert from the defendant, within a tight timeframe, but was silent about any expert evidence for the defendant for which, I infer, there had at that stage been no application.
- This court was told that Nata Lee had already, in an earlier allocation questionnaire, indicated its wish to call Mr. Shattock. It is evident that he was perceived by Nata Lee to have useful evidence in respect of two matters: the first as to the drainage issues, for which it was proposed that he should give non-expert evidence, and secondly his measurements and conclusions about encroachment, for which it was conceived that his evidence would be of an expert category.
- The result was that a non-expert witness statement about the drainage issue was served, three days late, but otherwise pursuant to the judge’s directions. Mr. Shattock then signed an expert’s report of 28th January 2013 about the encroachment. An application by Nata Lee to call Mr. Shattock as an expert was refused by the judge on 17th May 2013, on the basis that, having previously acted for Nata Lee as its party wall surveyor, Mr. Shattock lacked sufficient independence. This was, in my view, a wholly inappropriate basis for rejecting his expert evidence, but the judge’s Order was not appealed. The judge did however tell Nata Lee (through its director Mr. Lee who attended the hearing) that her rejection of Mr. Shattock as an expert did not prevent him being called as a purely factual witness, nor did it prevent Nata Lee substituting a different expert for Mr. Shattock.
- Nata Lee did substitute a Mr. Dawson for Mr. Shattock as its expert. His report was dated 21st June 2013. Nonetheless, at a pre-trial review on 4thSeptember 2013 (at which Nata Lee was represented by counsel) an attempt was made to obtain permission to call Mr. Shattock as a purely factual witness to prove his measurements. No signed witness statement was proffered and the judge decided that, in the absence of such a witness statement, she could not give permission in the abstract, and left the matter to be dealt with by an application on notice. Again, that decision was not appealed.
- An application was made on notice, very shortly before the trial, and was inevitably adjourned to the beginning of the trial, when a witness statement from Mr. Shattock proving his measurements by reference to his contemporaneous notes was, again, refused by the judge. The tape recording of the hearing and determination of that application is corrupt, but a note from the Abids’ junior counsel shows that her leader Mr. Geraint Jones QC opposed the application on the basis that there was still a risk that Mr. Shattock would veer into giving expert evidence, once in the witness box. He said that, in any event, Mr. Shattock’s contemporaneous notes (on hand-drawn sketches) had been disclosed and that the Abids “would seek to rely on them”.
- The judge’s reasons for dismissing the application were that it was too late, that no good explanation had been given for its lateness, and that she was satisfied that it would be difficult for Mr. Shattock not to cross the line between expert opinion and acting as a lay witness. It may be that (although counsel’s note does not make this entirely clear) the judge was also concerned that if Mr. Shattock was called, then the Abids’ party wall surveyor might also have to be called, with a consequential increase in the length of the hearing, and cost. Later in the trial, Mr. Jones QC did indeed rely upon one aspect of Mr. Shattock’s contemporaneous notes, in relation to the reduction in the width between the gateposts at the east end of the yard, but no reference to or reliance upon Mr. Shattock’s one centimetre measurement of the encroachment of the new building at the other end of the yard was made, nor does it appear anywhere in the judgment.
- Mr. Weekes submitted that the procedural history which I have just described, in which his client, acting for the most part without legal representation, made diligent efforts to have admitted the best evidence of any relevant encroachment led to the wholly unjust exclusion of it, initially on a basis which was misconceived in law, and latterly upon a case management assessment which relied wholly on inexcusable delay, without any attempt to balance the importance of the evidence against any prejudice which its late admission might cause to Mr. and Mrs. Abid. He pointed out that the substance of Mr. Shattock’s evidence had been disclosed to and known by the Abids and their legal team for many months prior to the trial, since it had been set out, by reference to his disclosed contemporaneous notes, in the report which Nata Lee sought unsuccessfully to rely upon in May. He also submitted that, even if the Abids needed to call their own party wall surveyor to prove his measurements by way of response, this was not a prejudice caused by the lateness of Nata Lee’s application, since there was nothing to show that the Abids’ surveyor was unable to attend within the trial window which had been set aside.
- For his part, Mr. Isaac submitted that, since Nata Lee been told in the previous May that Mr. Shattock’s non-expert evidence could be adduced, if appropriately presented in a witness statement, leaving it until an application which could only be heard at the beginning of the trial was inexcusable, so that the judge’s case management decision to exclude it could not be challenged.
- I make it clear at the outset that, in my view, the fact that a party (whether an individual or a corporate body) is not professionally represented is not of itself a reason for the disapplication of rules, orders and directions, or for the disapplication of that part of the overriding objective which now places great value on the requirement that they be obeyed by litigants. In short, the CPR do not, at least at present, make specific or separate provision for litigants in person. There may be cases in which the fact that a party is a litigant in person has some consequence in the determination of applications for relief from sanctions, but this is likely to operate at the margins.
- Nor is this a case in which Nata Lee’s lack of representation led it, for example, to misunderstand the timetable for evidence laid down in the judge’s directions to which I have referred, nor her perfectly clear explanation, in May, that her refusal of permission to call Mr. Shattock as an expert did not rule out an application to admit purely factual parts of his evidence. It is not, therefore, a case in which the relevant requirements with which Nata Lee failed to comply were dressed up in legal jargon of a kind it simply did not understand.
- Nonetheless, I consider that the judge’s refusal to admit Mr. Shattock as a witness on what was undoubtedly a very late application was seriously flawed, both by a failure to balance the relevant considerations, and by reliance upon a supposed risk that he would veer into expert evidence if permitted to give factual evidence. The latter ought not to have been regarded by the judge as a significant factor against the giving of permission. Taking that aspect first, it seems to me that the judge continued to be influenced by the erroneous view to which she had come in May that Mr. Shattock’s lack of independence meant that expert evidence from him would be inappropriate. In reality, that lack of independence went only to the weight of his evidence. More importantly, I consider that this was a risk which, were it to materialise, could easily have been addressed by the judge while Mr. Shattock was giving evidence, rather than as a reason for not permitting him to give factual evidence at all.
- But the lack of balance in the judge’s determination was a more serious flaw. The evidence was plainly important because, unlike the evidence of either of the experts, it consisted of measurements taken before and after the erection of the allegedly encroaching building. It was supported by contemporaneous notes, and reached a conclusion significantly different from that of Mr. Calvert, since it reduced the encroachment in the only part of the yard which mattered to an insignificant one centimetre. It was simple and straightforward evidence which would have taken little time to deploy, or even to cross-examine, and there appeared to be no significant prejudice caused to the Abids by its admission. They had been aware of it for many months and their legal team had appraised its potential value in relation to the gap between the new gateposts. Furthermore, although there was an obviously unexplained delay between May and September in Nata Lee’s attempts to adduce that evidence, it was not something which it sought to introduce into the litigation for the first time at the beginning of the trial.
- It follows from this vitiating lack of balance in the judge’s assessment that, in my view, the balancing exercise has to be done afresh by this Court. I consider that while the delay was serious and to a large extent not satisfactorily explained, the balance ought to have come down in favour of admitting Mr. Shattock’s factual evidence, so that the judge’s decision about encroachment was undermined by a refusal to admit and therefore to consider persuasive evidence on that issue. If my Lords agree, this will therefore necessitate a retrial of the encroachment issue, but only so far as it affects that small part of the yard within the Abids’ paper title.