ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Birtles
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWISON
MR JUSTICE COLERIDGE
| Bianca Durrant
|- and -
|Chief Constable of Avon & Somerset Constabulary
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Alan Payne and Cicely Hayward (instructed by Legal Services Directorate, Avon & Somerset Constabulary) for the Respondent
Crown Copyright ©
Lord Justice Richards : This is the judgment of the court.
CPR 3.9 and the guidance in Mitchell's case
"On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders."
The former version of the rule is set out at para 24 of the judgment of this court in Mitchell.
The background to the present proceedings
The history of the proceedings
"Witness statements are to be exchanged no later than 4 pm on 21 January 2013."
She also gave a time estimate of 6 days for the trial, and set the trial window as 9 April to 28 June 2013.
"In terms of witness evidence, I am struggling to meet the deadline set by the court. This is because some of the officers involved in the incident have retired, taken a career break or have been unavailable over the Christmas period. The snow has further delayed matters. I anticipate that I will be in a position to exchange statements with you over the next 21 days at the very latest, but would be grateful if you agree to an extension."
"Defendant do file and serve any witness statements by 4 pm on 12 March 2013. The Defendant may not rely on any witness evidence other than that of witnesses whose statements have been so served" (emphasis added).
"I can only accept responsibility for some of the delays that have arisen in this claim, in so far as I have been unable to finalise matters of disclosure and service of witness evidence in accordance with the tight directions laid down by the court on 23 November 2012. No discourtesy is intended to the court. It is simply the case that I have been unable to meet the deadlines in addition to my other professional commitments. Delays also arose as a result of the Christmas period, adverse weather and operational commitments of the officers.
I hope to be in a position to serve statements from the above named officers very shortly. Some statements are more advanced than others. A signed statement has been received from at least one of the above named officers and is ready to be disclosed to the Claimant."
"28. I accept full responsibility on behalf of the Defendant for any failings or delays in complying with court directions and I am professionally embarrassed by the need to make this application to the court. My concern is that while the court has every right to be critical of me as the solicitor in this case for being tardy, ultimately, some very serious allegations have been made against the individual officers in this case. They have been accused by the Claimant of being corrupt and racist and capable of malfeasance. These are extremely serious allegations and those officers ought to be given an opportunity to explain their position and put forward their side of the case. Furthermore, the Claimant ought to be able to cross-examine those officers in order to ensure that the court is able to get to the truth of the matter.
29. I suggest that in particular, any allegations suggesting that the officers' actions were racially motivated require evidence from the Defendant's witnesses. Plainly the Claimant believes that the actions were motivated by race, but the only people who can assist the court in determining whether this was the case are the officers themselves. In the interests of the administration of justice it is only right that the Claimant and the Defendant's representatives should be afforded the opportunity to ask questions of the officers in this case and the officers ought to be permitted to explain their actions and feelings to the court. It is in the public interest that these allegations are tested thoroughly, particularly when they are levied against a public body such as this police. The Defendant's officers are horrified by these allegations and fervently deny any wrongdoing on their part. Naturally, their reputation within the public domain and their community is of utmost importance to them and they wish to have the opportunity to address the court and succumb to cross examination.
30. I can assure the court that the failure to comply with court directions was not intentional. The claim unexpectedly gained pace. This was unforeseeably to me as the Defendant's representative and I naively underestimated the timescales involved in responding to the numerous allegations made by the Claimant against the Defendant's officers. My other professional commitments, including some large claims have also impeded my ability to comply …."
"4. The Defendant has recently changed counsel. In addition, approximately 7-8 working days ago the claimant served a 46 page skeleton argument. The view was taken to review the claimant's issues in light of this skeleton argument with counsel and, having undertaken this review, the decision was taken that two additional witnesses should give evidence so as to ensure that the Court could consider their explanation for conduct which the claimant alleges was racially discriminatory."
The decision under appeal
"34. … The two specific factors mentioned are the need for litigation to be conducted effectively and at proportionate expense. At present I am minded, subject to discussion after this judgment is handed down, to give the Claimant the opportunity of deciding whether the trial is to proceed this week or later. Her costs are substantially less than those of the Defendant ….
35. The second factor mentioned in the new CPR 3.9 is to enforce compliance with rules, practice directions and orders. There has been past delay. With the service of these witness statements, the trial can now proceed either this week or at a newly-fixed date. I fully take on board the failure to comply with the orders that I have referred to of District Judge Daniel, Lang J and now, of course, Mitting J.
36. 'All the circumstances.' This phrase exists both in the old CPR 3.9 and the new CPR 3.9. Standing back, it is a most unusual case. It is not a contract case where all that is between the parties is a sum of money; it is not a factory accident or a road traffic accident where, again, what is between the parties is what is the appropriate sum of money to recompense the successful claimant.
37. For the Defendant, the Chief Constable, it is his or her reputation as the Chief Constable of the Defendant and as the reputation of a police authority. What weighs much more heavily with me in this case is the careers and reputations of the Defendant's witnesses, except Mr Pascal [of the defendant's PSD]. Some are still serving police officers; one at least has a public sector job. If I prevent them from giving evidence then they will have no opportunity, or limited opportunity, of defending their actions. The professional consequences for some of them at least could potentially be very serious if I made adverse findings against them. I remind myself again of the claims made against them by the Claimant. It is not their fault that their witness statements have been served late.
28. There is … a public interest in the Court scrutinising the actions of police officers when it has heard all of the evidence from both sides. It is that factor in particular which persuades me that in this case I should grant the relief from sanctions sought and permit the Defendant's witnesses to give evidence in this case. This of course is subject to two matters: the first that the Defendant must pay the Claimant's costs for this application, in any event, and, secondly, I must give the Claimant adequate time to prepare the case to deal with the Defendant's witness evidence. I bear in mind of course that she is a litigant in person, albeit a very able one."
The submissions on the appeal
Discussion of the issue of relief from sanction
"It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided than an application is made promptly. The principle 'de minimis non curat lex' (the law is not concerned with trivial things) applies here as it applies in most areas of the law. Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms …."
As we have said, the non-compliance in relation to the two statements, taken by itself, might be characterised as trivial, as an instance where "the party has narrowly missed the deadline imposed by the order". The non-compliance becomes more significant, however, when it is seen against the background of the failure to comply with Lang J's earlier order, and the fact that Mitting J, in extending that deadline, had seen fit to specify the sanction for non-compliance.
The claimant's application for strike-out or summary judgment