RELIEF FROM SANCTIONS GRANTED WHEN WITNESS AND EXPERT EVIDENCE SERVED LATE : EXPLAIN DELAY EVEN IF THERE IS NO GOOD REASON FOR IT
In Castle Trustees Ltd -v-Bombay Palace Restaurant Ltd  EWHC 3893 (TCC) Mrs Justice Jefford allowed the defendant’s application for relief from sanctions when the defendant served witness and expert evidence late. This case is interesting for a number of reasons:
The defendant’s sensible decision to serve the witness evidence and attempt to agree a timetable in relation to expert evidence. (This is far more prudent than promising the court that any breach will be remedied if relief from sanctions is granted).
The difficulty in pointing to “precedent” in relation to relief from sanctions applications. Each case has to be assessed on its own individual facts.
The judge took into account that there was an explanation for the default, even if that explanation did not amount to a “good reason”. Explaining the reason for default is important.
The action concerned building work carried out in 2012. Proceedings were issued in 2014. There had been an Early Neutral Evaluation, which was not successful. Directions were given in November 2016 for a trial in July 2017. Witness statements were due to be served on the 27th March and 19th May respectively. The claimant sought an order for summary judgment when the defendant failed to comply. At that application the defendant was given permission to defend subject to making a payment into court and making an application for relief from sanctions. The claimants were given further time to serve expert evidence.
THE HEARING FOR RELIEF FROM SANCTIONS
The hearing took place on the 21st June 2017.
THE DEFENDANT’S “SENSIBLE APPROACH”
Rather than remaining passive the defendant served the witness evidence on which they intended to rely and attempted to arrange meetings of expert. This approach was described as “sensible” by the judge.
16. In the meantime, the defendant has taken what in my view is plainly a sensible approach. They have “served” (in quotation marks as Mr. Williamson put it) the one witness statement on which they rely. They did so on 9th June 2017. That is a statement of a Mr. Stephen Brown, the defendant’s monitoring surveyor, who has been involved throughout this matter. I have been invited to review that statement. No detailed submissions about its contents have been made to me but it seems, on its face, to give evidence that supports the pleaded case. To that extent, its content is not surprising and it is not new in that sense to the claimants. Mr Parker QC made no substantive submissions on that statement: he said that he had not read it because he had not been instructed to do so.
The claimants had obtained an extension of time for service of their expert’s report. The defendant had not and was in default (this was part of the application for relief from sanctions).
18. The defendant has only one expert on both matters. They say that theyare in a position to serve on the same date. That does not mean that they are somehow not in breach of the existing order to serve by 19th May because they have not sought or received until today’s date any corresponding extension but it is something that I should take into account in considering the overall circumstances of this action.
19. In the meantime, the defendant has offered again a sensible approach namely that their expert attends without prejudice meetings. The first such offer was made on 1st June. It was repeated on 15th June. The claimants’ experts have declined to meet on the basis, principally, of lack of time given the deadline for the preparation of their reports
THE DENTON CRITERIA CONSIDERED
It was common ground that the defendant’s breach was serious and significant. The judge found that there was no good reason for the breach.
“25. I take into account the following circumstances. First, I repeat what Coulson J has said about the relatively straightforward nature of this case. Second, this matter has been on foot for a considerable time. The issues have been canvassed in adjudication in 2012, 2013, and in an Early Neutral Evaluation in 2016. Unless there is some significant change in the defendant’s case which could have been the subject of separate complaint, I can see no reason why matters cannot be ready for trial in July without any prejudice to the claimants.
26. The sole witness statement relied upon, which covers, as I have already said, the pleaded issues, has already been served, about 10 days ago. The expert’s report or reports can be served at the same time as the claimant’s reports, that is by the extended date already given to the claimants. The defendant has been offering to meet in the interim; that offer has not been taken up; but the probability is that there will be without prejudice meetings between the experts in order to narrow the issues between them after the service of the reports, and well in time for matters to be narrowed, if they can be, before the trial in July.”
DIFFICULT TO RELY ON “PRECEDENT” IN RELIEF FROM SANCTIONS CASES
The claimant pointed to apparently similar cases where relief from sanctions had been refused and that decision upheld by the Court of Appeal. The judge did not accept this line of argument.