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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:

Relief from sanctions/late service of expert evidence: In Ellison v University Hospital of Morecambe Bay NHS Foundation Trust (2015) an NHS trust was refused leave to rely upon a report from an accommodation expert. Sitting in the Queen’s Bench Division, Cranston J held that to admit the report would have meant the trial would have had to have been adjourned. Applying the test in Mitchell, the Defendant’s failures were not trivial and there was a need to follow court orders.

The following are cases where the court had regard to the test in Mitchell and/or Denton, notwithstanding the fact that they were not applications for relief from sanctions per se:

Application to serve witness evidence/application to vacate trial: In Devon & Cornwall Autistic Community Trust (a Company Limited by Guarantee T/A Spectrum) v Cornwall County Council (2015) Green J was asked to consider an application for leave to rely upon witness evidence and to vacate the trial. Sitting in the Queen’s Bench Division, Green J concluded that an application to serve evidence out of time under CPR r.32.10 was in substance an application for relief from sanctions under CPR r.3.9. Applying the test in Mitchell and Denton, held that the breach was very serious and that, if it was suggested that the failure to comply was due to a failure of legal advisors, then an explanation should have been provided as to how they were said to be at fault. The application was successful in that the witness evidence would be permitted but the trial date would stand.

Application to transfer proceedings to High Court/case mistakenly started in the County Court: In Butterworth v Lang (2015) M Anderson QC likened an application to transfer proceedings mistakenly brought in the County Court up to the High Court under s.42 of the County Courts Act, as like an application for relief from sanctions. Refusing the application against the transfer, the Judge considered that it was right for the court to take into account the test in Denton when considering the application. The rules envisaged that there would be circumstances when proceedings would need to be transferred and the order would stand.

By Marcus Davies

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