RELIEF FROM SANCTIONS SHOULD NOT HAVE BEEN GRANTED: CPR 3.9 PROPERLY APPLIED IS ARTICLE 6 COMPLIANT

The previous two posts on this blog have been warning against complacency in relation to the Denton principles.  This is the third in that series.  In Magee v Willmott [2020] EWHC 1378 (QB) Mrs Justice Yip allowed an appeal in a case where relief from sanctions was originally granted.

“The Recorder misdirected himself in his approach to Article 6. The court’s refusal to grant relief will not offend Article 6 provided that doing so is proportionate. Securing compliance with court orders is a legitimate aim. Conducting the required balancing exercise pursuant to CPR 3.9 will generally ensure that the decision on whether to grant relief from sanctions is Convention compliant. Otherwise, litigants could act with impunity, avoiding compliance with court orders and claiming relief on the basis of their right to a fair trial”

THE CASE

The claimant brings a claim in clinical negligence, alleging a failure to diagnose bowel cancer.   Witness statements had been exchanged,  expert reports served, join statements  were due and the matter was listed for trial in September 2019.

However the claimant’s medical evidence did not support the claimant’s pleaded case. The claimant then sought permission to rely on further expert evidence and an extension of time for the joint reports. The claimant sought permission to introduce three new expert reports.

In response the defendant made an application to strike out the action under CPR 3.4.

The claimant’s applications were listed before a Recorder with a time estimate of one day.

THE RECORDER’S DECISION

The Recorder heard the hearing, finding that CPR 3.9 and the Denton principles applied.

“Ultimately, I have to balance the interests of D2 against the interest of C in the context of the overall justice of the case having regard to the Denton criteria. The delay caused by the loss of hearing date will cause further anguish to D2. She has had these proceedings hanging over her head like the sword of Damocles and a further delay is something I have to weigh in the scales against C as well as the inefficiency of C’s team. On the other hand she has not lost the possibility of being cleared by the court after a full trial

In my judgment D2’s loss of having C’s case struck out without a trial now would not be as unjust to D2 as the loss of an opportunity to prove that her cancer should have been diagnosed earlier would be to C.

Furthermore, I have to strike a fair balance between the legitimate aims of CPR 3.9 and the right of C to continue with the trial of her claim. In my judgment although the case is finely balanced the overriding objective of doing justice between the parties impels me [to] allow use of the new expert evidence.”

1. 1. The Recorder therefore granted relief from sanctions and gave leave to the Respondent to rely on the new expert evidence. He then said:

“It follows that D2’s application for abuse and/or no reasonable grounds for bringing the claim fall to be dismissed. It will be for the trial judge to decide what if any purpose there is in persisting with the part of the claim that is concerned with the consultation of 12 April 2013.”

THE DEFENDANT’S SUCCESSFUL APPEAL

Appealing the exercise of a discretion is a difficult task. The defendant, however, was successful.

1. 1. I remind myself that an appellate court will not lightly interfere with case management decisions or the exercise of judicial discretion. The test in considering an appeal against a decision pursuant to CPR 3.9 was neatly encapsulated in Clearway Drainage Systems Ltd v Miles Smith Ltd [2016] EWCA Civ 1258 at paragraph 68:

“The fact that different judges might have given different weight to the various factors does not make the decision one which can be overturned. There must be something in the nature of an error of principle or something wholly omitted or wrongly taken into account or a balancing of factors which is obviously untenable.”

The same approach applies to decisions by first instance judges to strike out, or not to strike out, claims under CPR 3.4(2), see The Commissioner of Police of the Metropolis v Abdulle & others [2015] EWCA Civ 1260 at paragraph 28.

1. I have concluded though that the Appellant’s grounds of appeal are well-founded and that the Recorder did err in his approach to the application for relief from sanctions. Although he purported to apply the test in CPR 3.9, as explained in Denton, his analysis in fact demonstrates a different approach, focusing on the Respondent’s Article 6 right, asking whether it was “necessary” to deprive her of her right to a trial of her claim and “seeking so far as possible” not to deprive her of that right. The simple balancing of prejudice to the Respondent if she were unable to pursue her claim to trial against that to the Appellant in not having the claim struck out also failed to properly engage with all the relevant circumstances, including the two factors specifically mentioned in CPR 3.9.

2. It is impossible to be anything other than sympathetic to the Respondent’s position. She is not to blame for the late service of the evidence, for the way in which Mr Anwar dealt with the expert evidence after Ms Jackson pointed out the difficulties or for any other failings. It is particularly unfortunate for someone who believes that they have been failed by the medical profession to then be badly let down by the legal profession. It is also to be remembered that she has been through a dreadful time. Had her cancer been diagnosed earlier, she would have faced less treatment and better prospects of a successful outcome. While the condition and prognosis evidence is not yet clear, I do not doubt that the Respondent lives with the real fear of a recurrence and the worry that she may have lost the opportunity to be cured. I entirely understand her desire to have her claim tried. Further, I accept that a claim for professional negligence against her solicitors may not provide a real remedy for her for multiple reasons, including the way in which damages are calculated, the time involved in prosecuting a new claim and the denial of the opportunity to seek a positive finding against the Appellant.

3. Mr Smith referred to the observations of Turner J in Gladwin v Bogescu [2017] EWHC 1287 (QB) at paragraphs 30 to 31, as authority for the proposition that generally the courts will treat the actions of a party’s legal representative as those of the party. However, as he fairly acknowledged during his submissions, the court could and should take into account the Respondent’s circumstances and the fact that she was personally blameless when considering all the circumstances of the case.

4. However, sympathy for the Respondent and her personal blamelessness cannot be the sole, or even the main, consideration. It is not enough to weigh the prejudice to the Respondent in losing her claim against the prejudice to the Appellant in the loss of the trial date and the resultant delay and ongoing worry for her. The court must look at all the circumstances, including in particular the two factors set out in the rule, namely the need for litigation to be conducted efficiently and at a proportionate cost and to enforce compliance with rules, practice directions and orders.

5. The starting point is that the court had set a timetable providing for a trial no later than September 2019. The parties were required to obtain and exchange the expert evidence on which they were to rely in time for the experts’ joint statements to be prepared by the beginning of August so that trial preparations could then be completed. The litigation was conducted efficiently on the Appellant’s side and she complied with all directions. The Appellant’s representatives were pro-active in addressing the issues. A clear Defence was served. Breach of duty was denied in relation to all three consultations. It was noted that no case had been pleaded in relation to causation in respect of the April 2013 appointment. Causation was denied in relation to the events of August 2012, it being contended that referral at that stage would not have materially altered the treatment course or outcome. The Appellant’s expert evidence, served in time, was consistent with the pleaded Defence.

6. Ms Jackson clearly went to some effort to analyse the Respondent’s served evidence before promptly raising her concerns with Mr Anwar. In my view, her conduct was exemplary and demonstrated a genuine desire to deal with the matter fairly, efficiently and within the timetable set by the court.

7. Unfortunately, the same cannot be said of Mr Anwar. I am afraid that the inescapable conclusion from the evidence before me is that he was not frank with Ms Jackson or with the court. He sought to give the impression that the problems with the Respondent’s evidence arose through his oversight in serving the ‘wrong’ evidence but that he was in possession of evidence supporting the pleaded allegations of breach of duty and causation. His statement that the expert evidence had not materially changed but had just been completed and made ready for trial was just not true. The reality is that, after Ms Jackson had taken the trouble to identify the real weaknesses in the Respondent’s case, Mr Anwar set about trying to put the case in order. By then, he had disclosed the Appellant’s evidence to his experts. He gave specific instructions to Dr Hard that he should address the gaps identified by Ms Jackson. Mr Anwar was slow to give disclosure and it was left to Ms Jackson to tease out what had really happened and to provide a full picture to the court.

8. If it was not already inevitable that an attempt to introduce new evidence at such a late stage would cause the trial date to be lost, that became wholly unavoidable by the way in which Mr Anwar dealt with the application. His attempt to conceal the true position, namely that he did not then have the necessary expert evidence to support the Respondent’s case and his withholding of the supplementary reports until after the pre-trial review made it impossible for the Appellant to properly respond in time. Had this truly been a case of oversight where evidence was available but had not been served at the right time, it may well have been possible to rectify the situation without threatening the trial. The true position was very different. Mr Anwar was seeking the necessary expert evidence to plug the gaps in the Respondent’s case after the time for service had passed. It is simply not good enough for a claim for professional negligence to be pleaded and maintained without proper expert support and for a late attempt to be made to furnish evidence to support the claim just before trial. Further, it is notable that Mr Anwar delayed making the application until he had the new evidence and further delayed proper consideration of the application by being slow to disclose obviously disclosable material.

9. In those circumstances, granting relief in this case undermines rather than promotes the need for litigation to be conducted efficiently and at proportionate cost and for parties to comply with rules and court orders. It rewards the inefficient and improper conduct of the Respondent’s solicitor at the expense of a party who has done everything possible to conduct the litigation efficiently and without incurring unnecessary cost.

10. The Recorder was right that the loss of the trial date was not necessarily decisive, but it was a very important consideration. Not only did this impact on the Appellant in the way that the Recorder acknowledged, but it also disrupted the court’s business. The need to relist the trial was likely to impact on the allocation of resources to other cases. Further, it could not be said that the case was “trial ready”. The joint statements of the experts remained outstanding. The new evidence would first need to be considered by the Appellant’s experts. It would clearly take some time to relist the trial taking account of the availability of all the witnesses. As the Recorder noted, the claim had already been hanging over the Appellant for a considerable period of time.

11. Factors (a) and (b) in CPR 3.9 both weighed heavily against granting relief from sanctions in the circumstances. The only factor that could really be set against that was the impact on the blameless Respondent, particularly taking account of her difficult circumstances. However, that was balanced at least to some extent by the impact of granting relief on the Appellant, who was also blameless, as were her solicitors.

12. The Recorder misdirected himself in his approach to Article 6. The court’s refusal to grant relief will not offend Article 6 provided that doing so is proportionate. Securing compliance with court orders is a legitimate aim. Conducting the required balancing exercise pursuant to CPR 3.9 will generally ensure that the decision on whether to grant relief from sanctions is Convention compliant. Otherwise, litigants could act with impunity, avoiding compliance with court orders and claiming relief on the basis of their right to a fair trial, see Momson v Azeez [2009] EWCA Civ 202. The Recorder was wrong to elevate the Respondent’s Article 6 right to the decisive factor in the way that he did. A proper application of CPR 3.9, weighing all the circumstances so as to deal with the application justly satisfies Article 6.

13. Further, in my view, the Recorder overestimated the extent to which depriving the Respondent of opportunity to rely on the new evidence represented a real prejudice to her. The strength of a party’s case is generally irrelevant when it comes to case management decisions, including on applications for relief from sanctions: HRH Prince Abdulaziz Bin Mishal Bin Abdlaziz At Saud v Apex Global Management Ltd [2014] UKSC 64. Here though, it is a relevant consideration that the effect of the breach, involving the piecemeal service of the Respondent’s expert evidence, was bound to leave her in a difficult position, even if she was permitted to rely on the updated reports. This was particularly so in relation to breach of duty. The Appellant had served evidence from Dr Hampton supporting her approach at the relevant consultations. Applying the well-known principles that emerge from Bolam v Friern Management Committee [1957] 1 WLR 582 and Bolitho v City and Hackney Health Authority [1998] AC 232, the Respondent could succeed only if she could demonstrate that Dr Hampton’s view did not withstand logical analysis and/or could not be viewed as representing a responsible body of medical opinion. It seems to me that it would be very difficult to overcome that hurdle in reliance upon expert evidence that had materially changed and developed so late in the course of the litigation. In truth, the breach had already left her claim in a very weakened position. Permitting reliance on the late evidence might have allowed the claim to limp on to trial. Realistically, it was unlikely to lead to a successful outcome given the circumstances in which it was obtained and the test to be addressed. I stress that I have avoided an impermissible examination of the substantive merits of the claim. However, given the way in which the Recorder framed his judgment, I think it is important that the Respondent is aware that refusing to grant relief does not necessarily equate to depriving her of an otherwise good claim.

14. Standing back, I consider that the application of the proper test under CPR 3.9 leads to the refusal to grant relief from sanctions so as to allow the Respondent to rely upon the additional expert evidence which came into existence only after the date for exchange of the evidence to be relied on at trial. The breach was serious and resulted in the loss of the trial date. Re-listing would have produced further, not insignificant, delay leaving the matter hanging over the parties. The conduct of the Respondent’s solicitor was particularly egregious. He was not frank with the Appellant or the court and delayed in making the application and in giving full disclosure while he attempted to obtain the necessary evidence to support the claim which had been advanced. He did so in response to the Appellant’s solicitor appropriately identifying the difficulties in maintaining the pleaded claim. To allow the application for relief would not only fail to do justice between the parties but would serve to discourage the sensible, pro-active and efficient approach to litigation exemplified by the Appellant’s side. The factors specifically identified in CPR 3.9 pointed strongly towards refusing relief. The natural sympathy inevitably felt for the Respondent, who was not personally responsible for the breach, cannot properly tip the balance in her favour. Properly analysed, it is far from clear that she is significantly prejudiced by the refusal of relief given the weak position she would have found herself in anyway given the piecemeal development of her expert evidence so late in the course of the litigation. It follows that I must allow this part of the appeal and refuse relief from sanctions.