SEEKING PERMISSION TO RELY ON AN EXPERT DOES NOT GIVE RISE TO AN APPLICATION FOR RELIEF FROM SANCTIONS: IMPORTANT JUDGMENT BY THE COURT OF APPEAL

In Yesss (A) Electrical Ltd -v- Warren [2024] EWCA Civ 14 the Court of Appeal considered the law relating to when an application for relief from sanctions comes into play. The judgment gives clear guidance about the question of when a case is governed by the CPR 3.9 provisions and those where the court is considering the more general principles of the overriding objective.  In this case it was found that a very late application to rely on a new expert witness did not give rise to CPR 3.9 being engaged.

“It may seem trite to say that if there has been no breach of a rule, practice direction or order then the relief from sanctions provisions do not apply, but it is worth emphasising. That is because in some contexts it appears that the
concept of “relief from sanctions” has been used as a label simply to characterise the tougher approach to case management and compliance which can be found in Mitchell and Denton. That is not right. The courts today do apply an approach to case management in general which is less tolerant of delays than before. The modern approach has a greater emphasis on compliance and the need for efficient conduct of litigation at proportionate cost.”

THE CASE

The claimant brings an action for damages for personal injury.  Proceedings were issued and the case allocated to the Multi Track. The claimant was given permission to rely on evidence from an orthopaedic surgeon.  The orthopaedic surgeon’s report recommended seeking the opinion of a pain management expert.  No steps were taken at the CCMC to seek permission from a pain expert and the action progressed towards trial.  A trial date was listed in April 2022, this was vacated due to the unavailability of witnesses.  The matter was then listed for trial in September 2022.  The claimant applied to vacate that date, the court having listed the matter without reference to the claimant’s list of dates when witnesses were not available.

In February 2022 the claimant applied for permission to rely on a pain management expert and psychological experts. Around the same time the action was listed for trial in September 2022.

In June 2022 the District Judge made an order giving the claimant permission to rely on a pain management expert and refusing the application for a psychologist.  The trial date was vacated and the a further CCMC was listed in January 2023.

THE DEFENDANT’S APPEAL TO THE CIRCUIT JUDGE

The defendant appealed to the Circuit Judge.  One primary issue was whether the claimant’s application for permission was governed by the provisions of CPR 3.9 or whether the court had a wider discretion.  That appeal was dismissed. The judge held that CPR 3.9 did not apply in these circumstances.

THE DEFENDANT’S UNSUCCESSFUL APPEAL TO THE COURT OF APPEAL

The defendant obtained permission to appeal to the Court of Appeal.   The defendant’s main argument was that the provisions of CPR 3.9 applied and the court should have approached the matter on that basis, refusing the claimant’s application.

THE FIRST QUESTION WAS THERE A BREACH?

The critical starting point, as the appellant’s submissions recognise, is a breach of a
rule, practice direction or order. It may seem trite to say that if there has been no breach
of a rule, practice direction or order then the relief from sanctions provisions do not
apply, but it is worth emphasising. That is because in some contexts it appears that the
concept of “relief from sanctions” has been used as a label simply to characterise the
tougher approach to case management and compliance which can be found in Mitchell
and Denton. That is not right. The courts today do apply an approach to case
management in general which is less tolerant of delays than before. The modern
approach has a greater emphasis on compliance and the need for efficient conduct of
litigation at proportionate cost. There is recognition that the need for efficiency and
proportionate cost applies both in the given case and in relation to knock on effects on
other cases. The basis in the rules for this general approach, as I mentioned in Lufthansa
at [23], is not r3.9 and relief from sanctions, rather it is that the two principles identified
are now embedded in the overriding objective (r1.1(2)(e) and (f)) and they play an
important part in its application. That is why it can be said that the “ethos” of Denton
applies even when r3.9 (relief from sanctions) is not engaged (c.f. FXF paragraph 76).

THE NEXT QUESTION – IS THERE A SANCTION?

26. Assuming a breach has been identified, the next aspect is sanction. The issue in
Lufthansa was that although there was a clear breach of an order, that breach attracted
no sanction and therefore the applicant did not need relief. The application therefore
fell under the overriding objective in general. I refer to [21] of Lufthansa, in which I
addressed sanctions in this context and referred to the distinction between express and
implied sanctions. Briefly, I sought to explain that rules 3.8 and 3.9 do not create
sanctions, they apply when a sanction exists; and that when a sanction does exist and
has been imposed, the onus is on the party seeking relief to come to court. Denton is
not concerned with identifying whether or not a sanction exists. The sanctions may be
expressly provided for in the rules or the relevant order, and certain classes of implied
sanction have also been identified, in Salford Estates v Altomart (cited above) and
Sayers v Clarke Walker [2002] EWCA Civ 645.

THE CONCEPT OF SANCTIONS

Lord Justice Birss then considered the concept of sanctions and whether there could be an “implicit sanction”.  He stated that the the concept of “implied sanction” gave rise to a high bar and should only be extended on a limited basis.

“Bearing in mind the importance of clarity in the procedural framework to be followed
by court users, the hurdle for identifying something as an unexpressed but implicit
sanction must be a high one. It has been identified in the two circumstances mentioned
in the cases above. I prefer to say that the scope for identifying any further implied
sanctions over and above these two must be very narrow. Bearing in mind that the
Denton “ethos” may apply even when r3.9 is not engaged, the need for further
extensions of this concept is likely to be very limited.”

THE CORRECT APPROACH

“In summary, in my judgment, the general approach to working out whether a case is
covered by r3.9 is to start by identifying if a rule, PD or order has been breached. If
there is none then the rule does not apply. If there has been a breach then the next task
is to identify any sanction for that breach which is expressly provided for in the rules,
PDs or in any order. If there is no such express sanction then, outside the third category
identified in FXF and the specific recognised instances of implied sanctions identified
in Sayers, and Altomart (i.e. notices of appeal and respondent’s notices), there is no
relevant sanction for the purposes of r3.9, and so that rule does not apply. Only if there
is both a breach and a sanction does r3.9 apply. It is worth noting that these
circumstances are all concerned with sanctions which take effect as a result of a breach
without further intervention. The court can always decide later to impose a sanction
for a breach, such as a fresh order expressed as an unless order or an order for costs
thrown away, but for either of those things to happen, a fresh decision would been
needed.

34. I would also add this, just because a rule, PD or order provides that a party needs
permission to take a step, does not mean that that need for permission has been imposed
as a sanction for breach of something. There are cases in which a permission
requirement has indeed been imposed as an sanction – such as r32.10 as it applies to
witness statements – but there are other cases in which the need for permission under
the rules is plainly not there as a sanction for breach. An example which springs to
mind is the general requirement for permission to amend statements of case.

35. Some might misunderstand this reasoning as a signal of some kind of rowing back from
the modern approach to timeliness and procedural compliance. Not so. The structure
of the rules, PDs and for that matter the directions orders made by judges all the time,
are aimed at taking a modulated approach to case management. Mandatory provisions
in orders, rules and PDs are meant to be adhered to. Full stop. The point is that the
system can and does accommodate a scheme in which some provisions have sanctions
for breach expressly provided for, and others do not.

APPLYING THIS TO THE CURRENT CASE

The claimant had breached certain requirements in relation to preparing for the CCMC

“I indicated above that these provisions aim to make the CCMC the single occasion at
which case management is undertaken albeit recognising in paragraphs 6.1 and 6.2, that
circumstances can change and applications are made to vary directions. So they do.
Nevertheless as with rule 29.4, the fact that the respondent ought to have raised the pain
management expert earlier does not mean these terms of this PD were breached in not
doing so.
43. Therefore to conclude on breach, I would hold that the claimant has not complied with
aspects of two directions orders in this case but has not breached r29.4 or the PD
provisions relied on.
44. The question then is whether r35.4 is a sanction for the breaches identified. In my
judgment it is not. The fact that the claimant needs permission under r35.4 to call the
pain management expert is not a consequence imposed for a breach of a rule, PD or
order. The requirement for permission is imposed by the rules to control expert
evidence. Parties always need that permission. The court’s role in controlling expert
evidence is a more searching one than in relation to fact evidence and r35.4 plays a key
role in that control. But it is not there to impose a sanction for non-compliance and I
accept the respondent’s submission to that effect.

PROVISIONS WITH NO BUILT IN SANCTION FOR NON COMPLIANCE

In truth the rules, PD and orders relied on represent paradigm examples of provisions
for which there is no built in sanction for non-compliance. The non-compliance may
lead to negative consequences (so in T (Child) v Imperial College Healthcare Trust the
very late evidence was not admitted) but that is not because of the application of CPR
r3.9.
47. Accordingly I reject the first ground of appeal. This application is not one to which
r3.9 applies. It is not a matter of relief from sanctions.

THE SECOND GROUND OF APPEAL

“To recap, on ground 2 the appellant submits that even if r3.9 does not apply so that the
case is to be approached as one under the overriding objective, it was plainly wrong to
allow in this expert evidence in the circumstances as they were. The reasons why have
been summarised above already. Even more briefly, the respondent ought to have
raised this at the original CCMC, and I have accepted the submission that the failure to
do so was a breach of the allocation order, and the later failure was a breach of the
CCMC order as well. The delay is very serious, even if it is a late application rather
than a very late application.

49. The case is very near the line, and many judges might well have refused the application,
particularly bearing in mind the modern emphasis on compliance and the need for
efficient conduct of litigation at proportionate cost (overriding objective r1.1(2)(e) and
(f)). However I cannot hold that it was outside the wide case management discretion
of the judge in this case. The judge clearly understood all the points which really
mattered: the lateness of the application, the fact that it should have been raised at the
original CCMC, and the fact that the only explanation why it had not been raised at the
CCMC was the change in the file handler. However the critical factor, which the judge
also had well in mind, was that at the time at which the judge’s decision was being
made there was no trial listed. Allowing the application would not vacate a trial or
disrupt any extant lists. It would mean the case came on for trial later than it might
have done but the judge understood that. A curiosity in the judgment is that it
contemplates the possibility of refixing the trial for December 2022 after the new
evidence is admitted (paragraph [12]) but the judge’s order clearly provides directions
for a new CCMC the following January 2023.

50. It was, as the judge recognised, highly fortuitous for the respondent that the trial had
just been adjourned to be relisted, but there is no suggestion that this was engineered in
some way by the respondent. In fact, as I have explained, the need for an adjournment
was due to an administrative error by the court. If the application had jeopardised an
existing trial date then I do not believe the judge would have allowed the evidence into
the case, nor would I have, but it is simply not what happened. I therefore dismiss the
appeal on ground 2.