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Jackson in Action - case law

In our regular monthly round up of cases we look at the effects of the changes to the Civil Procedure Rules under the Jackson Reforms and in particular the impact on relief from sanction applications as a result of changes to CPR r.3.9.

Relief from sanctions/when should relief be granted: In Denton & Ors v TH White & Ors (2014) the Court of Appeal sought to clarify and further explain the guidance it had previously given in Mitchell v News Group Newspapers (2013). The Court set out a three stage test for relief from sanction applications and warned litigants of the need to cooperate or face costs sanctions where applications are unreasonably contested. Read Simon Denyer’s analysis of the decision.

The cases listed below were decided before the Court of Appeal gave judgment in Denton:

Relief from sanctions/failure to serve witness evidence: In Gordon v Fraser (No.1) (2014) relief from sanction was granted in the High Court by N Strauss QC, where there had been a failure to service witness evidence three months after the agreed date. Whilst the default was not trivial, it was important for the court to still have regard to the overriding objective and to proceed without the witness’ evidence would have led to serious risk of injustice.

Relief from sanctions/failure to serve witness evidence: In Swinden & Anor v Grima & Anor (2014) Nicol J held that it was correct to refuse relief from sanctions where a witness statement had been served late, notwithstanding the fact that the witness had proved elusive and all had been done to obtain his proof. The breach was not trivial and the application for relief had not been made promptly.

Relief from sanctions/failure to serve witness evidence: In Riff Trading Ltd (In Liquidation) & Anor v Saunders (Deceased) & Anor (2014) the Chancery Court granted relief from sanctions from an unless order requiring the applicant to file and serve witness evidence, but imposed a significant penalty as to the costs of trial and Edward Bartley-Jones QC took the opportunity to make further orders in the case.

Relief from sanctions/failure to exchange witness evidence: In Cranford Community College v Cranford College Ltd (2014) the defaulting party had an exceptionally good reason for failing to comply with a deadline for exchange of witness evidence. Sitting in the Intellectual Property and Enterprise Court, Judge Hacon granted relief where one of the key witnesses had been caring for his very ill wife in hospital and the Judge retrospectively granted permission for that witness’ evidence to be served late.

Relief from sanctions/failure to serve supplemental experts report: In Bank of Ireland v Donaldsons (2014) Newey J sitting in the Chancery Court granted leave to adduce supplemental expert evidence as a sensible trial could not take place without it.  The expert’s substantive report had been served in time and the litigation would be conducted more efficiently if the supplemental report were admitted.

Relief from sanctions/failure to file transcript of judgment: In Patterson (Trustee in Bankruptcy of Spencer) v Spencer & Ors (2014) the Court refused relief from sanctions for failure to comply with an unless order. Judge Carr QC sitting in the Chancery Court held that the defaulting party had already been granted numerous indulgences and that the pattern of default had prevented the litigation from being conducted efficiently and at proportionate cost.

The following are cases which did not concern application of CPR r.3.9 but where the court had regard to the robust test now being applied under that rule:

Relief from sanctions regime/failure to serve funding information: In Warner v Merrett (2014) the High Court considered whether a failure to serve documents in respect of the funding arrangements with the bill of costs pursuant to the practice direction amounted to a trivial breach. Giving an extempore judgment Judge Mackie QC held that the breach had to be considered in context. There had been no inconvenience to the Court and the receiving party could have emailed or telephoned for the documents in question. There had been no breach of an order, no history of default and the party had acted immediately to correct the failure.

Relief from sanctions regime/further witness statements: In Davies v Liberty Place (Sheepcote Street) Management Co. (2014) a party serving a witness statement later than ordered was not automatically precluded from relying upon it. Giving judgment on the same day as the Court of Appeal decision in Chartwell v Fergies, Leggatt J held that the sanction under CPR r.32.10 actually took effect when the witness could not be called to give evidence (not before). It would be unfair if parties defaulting under the rule were to be treated differently to those in default of rules or orders that did not automatically lead to such a draconian sanction. The decision in Mitchell did not apply to the instant application. Read Simon Denyer’s analysis of Chartwell v Fergies.

For more information please contact Simon Denyer, Partner on +44 (0)161 604 1551 or email simon.denyer@dwf.co.uk

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.