England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Birtles
[2013] EWHC 1984 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th December 2013

Lord Justice Richards : This is the judgment of the court.


 


1. The recent judgment of the Court of Appeal in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 has given guidance on the correct approach towards applications under CPR 3.9 for relief from sanction for failure to comply with rules, practice directions and court orders. The present appeal provides an early opportunity to apply that guidance. Mitchell was concerned with a decision to refuse relief from a sanction imposed for failure to comply with the rules on costs budgeting. This case concerns a decision to grant relief from a sanction for non-compliance with an order requiring service of witness statements by a specified date and providing that the defendant might not rely on any witness evidence other than that of witnesses whose statements had been served by the specified date. The result of the grant of relief, so as to permit the defendant to rely on the evidence of witnesses whose statements were served late, was the loss of the trial date.

CPR 3.9 and the guidance in Mitchell's case

2. The version of CPR 3.9 which has been in effect since 1 April 2013 reads as follows:

"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.

3. For the background to the present rule and the correct approach to its application, we refer to paras 34 to 51 of the judgment in Mitchell. The terms in which the court upheld the refusal of relief in that case, at paras 51 to 58, and in which the court expressed its conclusion, at paras 59 to 60, are also relevant. We do not propose, however, to engage in extensive repetition of what was said in Mitchell. We simply note at this point the judgment's clear endorsement of a tougher, more robust approach towards enforcing compliance with rules, practice directions and orders and thus towards relief from sanction. The specific passages of particular relevance to the present case will be identified when we come to examine the decision now under appeal.

The background to the present proceedings

4. We should stress that the following summary of the factual background is disputed in material respects by the claimant. It does not, however, constitute findings of fact by the court and will not affect her position at trial. It is included simply for the purpose of explaining the context of the appeal.
5. The claimant is a young woman who was arrested with two friends in the early hours of 13 June 2009 on suspicion of assaulting a taxi marshal in Bristol. They were placed in a police van (the claimant in the caged area of the van, and her friends outside the caged area) and conveyed to a police station. The friends were processed first at the police station. The claimant remained in the van for a short period before being transferred to the custody suite to await her turn to be processed. While in the custody suite she informed police officers that she needed to use the bathroom. There was a short delay, as a result of which she urinated on the floor of the custody suite before she could go to the bathroom.
6. On 14 August 2009, on the advice of the CPS, the claimant was charged under section 4 of the Public Order Act 1986 and with assault. But when the matter came to trial, on 26 February 2010, the prosecution offered no evidence against her and she was acquitted.
7. The claimant then made complaints to the defendant's Professional Standards Department ("the PSD") and to the Independent Police Complaints Commission ("the IPCC") about the circumstances of her arrest, detention and prosecution. The PSD rejected all her complaints save in relation to the urinating incident, where it held that the custody officer had made a regrettable error of judgment, though with no intention to cause the claimant distress, and that the claimant should receive an apology. The defendant subsequently made an unreserved apology and an offer of £200 compensation. The IPCC rejected the claimant's appeal against the PSD's findings. Further complaints by the claimant were also investigated but were rejected.
8. The claimant's criticisms extended to the actions of a total of fourteen police officers involved in the incidents or in the subsequent investigation of those incidents. By way of proceedings issued on 11 June 2010 and re-issued on 29 September 2010, the claimant made claims against the defendant and/or its officers for false imprisonment, assault, malicious prosecution, misfeasance in public office, defamation, race discrimination, and breach of the European Convention on Human Rights. In her particulars of claim she alleged, among other things, that she was arrested because of racial targeting by the police, who assumed she was guilty because of her skin colour; that she was the victim of a racially aggravated assault by the arresting officers; that in putting her in the caged area of the police van, officers were treating her differently because of her race; that she was treated in an inhumane, degrading and humiliating way because of her racial heritage; that the PSD did not uphold her complaints because of her race; and that she was victimised because of her complaints of race discrimination.

The history of the proceedings

9. The claimant has acted in person throughout. She is plainly an intelligent and articulate young woman, but she has made the proceedings more difficult for all concerned by a tendency to over-complicate and over-react.
10. One part of the early history we should mention is that on 16 February 2011 District Judge Daniel struck out the claimant's claims "in respect of Articles 6 and 7 of the Human Rights Act 1998" (we quote from the order of the court), together with a claim for contempt of court, and dismissed her application to join the IPCC as a defendant. Her application for permission to appeal against that decision was refused by His Honour Judge Denyer QC on 8 July 2011. She then applied for permission to appeal to this court but was correctly informed by the Civil Appeals Office, by letters dated 21 July and 28 July 2011, that this court had no jurisdiction to entertain the application: that is the effect of section 54(4) of the Access to Justice Act 1999. Yet on 28 October 2013 she applied for a "re-hearing" under CPR 52.11(1)(b) of DJ Daniel's decision of 16 February 2011. The application was directed to be listed for hearing at the same time as the present appeal. At that hearing we declined to entertain the application, which in our view was totally misconceived: the lack of jurisdiction to entertain a challenge to DJ Daniel's decision had been explained in July 2011, the attempt to re-open the matter was hopelessly out of time, and CPR 52.11(1)(b) applies only to the conduct of an appeal that is properly before the court.
11. To return to the history, on 21 October 2011 there was a further hearing before DJ Daniel, at which he dismissed an application by the claimant to strike out the defence, gave directions for the exchange of lists of documents and witness statements, and directed that the case be transferred to the Royal Courts of Justice. Although that was the first of a sequence of orders setting a date for service of witness statements, it was subject to the difficulty that the claimant's case was not properly particularised at that stage, and it was effectively superseded by the case management directions described below.
12. In November 2011, Master Cook gave permission for the transfer to the Royal Courts of Justice and directed a case management conference, which took place on 8 March 2012. At that conference the Master directed the claimant to serve amended particulars of claim in substitution for all previous documents filed in support of her claim, and gave directions for service thereafter of an amended defence and for standard disclosure. The defendant's position statement for the case management conference, settled by counsel, stated that the defendant was likely to call eight witnesses, and that owing to the passage of time there was some difficulty obtaining statements from some of them but the defendant was optimistic that with extra time the statements would be obtained. An accompanying witness statement by Nicola Hammond, a solicitor in the defendant's Legal Services Directorate, stated that "The Defendant may need a few weeks to locate some of the witnesses who no longer work for the Defendant or who are currently on career breaks away from the Force". The defendant invited the court to make a direction for mutual exchange of witness statements by 24 May 2012. In the event, however, the Master did not include a direction in respect of witness statements in his order.
13. We can pass over certain intermediate events and move to the claimant's appeal against the Master's order of 8 March 2012. Permission to appeal was granted by Eder J in September 2012. The appeal was heard by Lang J on 19 November 2012. She allowed the appeal and directed that, with certain qualifications, the six existing versions of the claimant's pleadings were to stand as particulars of claim and that the defendant's existing amended defence was to stand as the defence. She gave further detailed directions to take the case up to trial, including a direction that:

"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.

14. The defendant failed to comply with the direction for exchange of witness statements. On 21 January 2013 Ms Hammond wrote to the claimant:

"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."

15. The claimant did not agree to an extension. She made a misconceived application that the Chief Constable be committed for contempt of court for failing to serve witness evidence, but this did at least have the effect of bringing the matter back before the court. On 26 February 2013, Mitting J dismissed the claimant's contempt of court application but made the following order in relation to witness statements:

"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).

16. In making that order, Mitting J had before him an explanatory statement of Ms Hammond in which she referred to six named officers whom she had met or taken steps to meet for the purpose of taking witness statements from them. She stated:

"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."

17. On 12 March 2013, the last day of the period set by Mitting J for service of the defendant's witness statements, Ms Hammond posted a letter to the claimant enclosing the statements of two officers. The defendant accepts that the letter would not have reached the claimant by the deadline in the judge's order. It is said that the statements were also sent to the claimant by email on 12 March; but whether or not that was done, the evidence is that she did not receive them until the following day. On 14 March the claimant informed Ms Hammond by email that the statements had arrived at approximately 1 pm on 13 March and that this was not in accordance with the judge's order. Despite the claimant's loud protest that there had been a failure to comply with the order, the defendant made no application at the time for relief from sanction.
18. At about this time (we were told by the claimant it was on 19 March) the parties were notified that the trial date was to be 10 June 2013.
19. On 15 May the defendant did make an application to the court for relief from sanction, "to allow the Defendant to rely on witness evidence in the claim". In her statement in support of the application, Ms Hammond stated that when she was contacted by counsel during the hearing before Lang J on 19 November 2012 she had suggested "a period of perhaps two to three months for witness evidence", which was a huge error on her part, made in haste, without reference to the file and without thought to the fact that many of the officers involved had left the organisation and others were operational officers with many commitments. She had also underestimated her own commitments. Her statement also repeated the substance of what she said in her witness statement for the hearing before Mitting J on 26 February 2013 following the defendant's failure to meet the deadline set by Lang J (see para 16 above).
20. Ms Hammond's statement went on to give the following reasons why it was said the court should allow the defendant to rely on witness evidence:

"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 …."

21. Neither the application nor Ms Hammond's statement gave the details of the witness evidence sought to be relied on. On 22 May, however, the defendant sent the claimant six witness statements, namely the two statements already served with the letter of 12 March and the statements of four additional officers.
22. On 31 May, Master Cook released the application for relief from sanction to the trial judge because he did not have time in his list to hear it before the trial.
23. On 5 June, just five days before the start of the trial, the defendant made a further application for relief from sanction, so as to allow two more officers to be called as witnesses, additional to the six who were the subject of the previous application. The explanation for this was given in a further witness statement from Ms Hammond:

"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."

24. The statement went on to put forward reasons why the court should allow the witness evidence, in terms that were in substance the same as those given in support of the previous application for relief from sanction, with the additional point that "the statements are short and add little that is unexpected".
25. On 10 June, the first day of the trial, it fell to the trial judge, His Honour Judge Birtles, to rule on the two applications for relief. He did not, of course, have the benefit of the judgment of this court in Mitchell to guide him.

The decision under appeal

26. Judge Birtles set out the current form of CPR 3.9 and noted that it was designed to follow the recommendations in Sir Rupert Jackson's Final Report. He referred to a passage in the judgment of Edwards-Stuart J in Venulum Property Investments Ltd v Space Architecture Ltd & Others [2013] EWHC 1242, para 32, to the effect that the nine factors set out in the former version of CPR 3.9 were not to be ignored but there had been a shift of emphasis so that the court was now required to take a "much stronger and less tolerant" approach to failures to comply with matters such as time limits. He said that he would follow that approach. The nine factors in the former version of the rule "provide a useful starting point before standing back to consider the new CPR 3.9 itself and all the circumstances of the case" (para 16).
27. Looking at those nine factors, he found, in summary as follows. (a) It was in the interests of the administration of justice that there should be a trial which was fair to both sides. The defendant would be greatly hampered if the witnesses did not give oral evidence. The converse was true for the claimant. (b) The application for relief had not been made promptly. (c) The failure was not intentional but was quite clearly the result of incompetence. (d) There was no good explanation for the failure: incompetence was not a good explanation. (e) There had been a previous failure by the defendant to comply with an order of DJ Daniel in relation to disclosure by list (though this was a matter in dispute before us and can be put on one side), as well as the failure to comply with the orders of Lang J and Mitting J in relation to service of witness statements. (f) The failure to comply was caused by the defendant's legal representative. (g) The claimant had submitted that the trial could not proceed that week because she had not prepared cross-examination of the witnesses and needed time to do so. (h) The claimant had been aware of the essential parts of the witnesses' evidence for some time because of the disclosure of earlier statements and the officers' notebooks. (i) The effect of granting relief would be to deprive the claimant of the advantage of the defendant having limited oral evidence to call. The refusal of relief would prejudice the defendant through being unable to call at least some of its witnesses.
28. The judge then turned to the current version of CPR 3.9:

"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."

29. After his ruling, the judge heard further argument on whether the trial should proceed. He decided to allow the claimant's application for an adjournment, to a date to be fixed in the following term. This appeal has necessitated its further adjournment.

The submissions on the appeal

30. Prior to the hearing of the appeal we had received written submissions from the claimant on her own behalf and from Mr Payne on behalf of the defendant. At the hearing, in addition to listening to their oral submissions, we indicated that the appeal in Mitchell had been heard by this court the previous week and that we would allow the parties an opportunity to make further written submissions once the judgment in Mitchell was available. Further written submissions were duly lodged following hand-down of that judgment.
31. The claimant argued that the judge was plainly wrong to grant relief from sanction; relief should have been refused in respect of all the witness statements, including the two sent on 12 March. Mitting J had made clear that he was giving the defendant a last chance, following previous non-compliance. There was no appeal against his order. Yet the defendant failed to comply with the order, and did so without good reason and with the result that court time and resources were wasted and the progress of the claim was further delayed. By contrast, it was submitted, the claimant herself had always complied strictly with the timetable set by the rules or the court. In her post-Mitchell submissions the claimant reinforced those arguments by reference to passages in the Mitchell judgment.
32. The various written submissions lodged by the claimant over time contain many other points, often expressed in strong terms, and a large amount of repetition. Much of what is said is irrelevant and/or unhelpful to her case on the appeal. The detail and lack of focus of the submissions tend to obscure the strong points that lie at the heart of that case. We have concentrated here on what we consider to be the strong points.
33. For the defendant, Mr Payne stressed that there is a high threshold to be crossed before an appeal court will interfere with a case management decision, and that this has not been altered by the Jackson reforms. He submitted that adherence to that approach is important in order to avoid encouraging appeals, with resulting delay, extra costs and increased use of court resources, all of which would risk nullifying a great deal of the efficiency benefits that would otherwise accrue from the reforms. In his submission, the public interest in affording a first instance judge a generous margin of discretion in case management decisions outweighs the interest in ensuring that all case management decisions are equally robust. He argued further that Mitchell has not introduced the extreme approach rejected by Sir Rupert Jackson, that non-compliance will not be tolerated save in "exceptional circumstances" (see the Mitchell judgment at paras 34-35), and that judges retain flexibility in determining whether there should be relief from sanction.
34. In his pre-Mitchell submissions, Mr Payne submitted that the judge in this case directed himself correctly, following the approach in Venulum Property Investments Ltd which recognised the shift of emphasis introduced by the new version of CPR 3.9. The judge took into account all the relevant factors, including "all the circumstances of the case" and the two specific factors set out in sub-paragraphs (a) and (b) of the rule. He was entitled to place weight on the reputations of the police force and of the individual officers concerned, and on the public interest in ensuring that a case of this kind is decided in the light of all the evidence on both sides. He was also right to distinguish this case from ones where the matter in issue is a sum of money: Mr Payne submitted that the claimant has shown no interest in the defendant's attempt to adopt a pragmatic and commercially realistic stance in relation to the litigation, and on the contrary has shown that her desire in pursuing the litigation is to visit revenge on the individual officers for what she considers to be their wrongful acts against her. Thus, the judge did not err in the factors he took into account, nor was his decision plainly wrong, and in those circumstances there is no proper basis for this court to interfere with the decision.
35. Mr Payne also relied on various additional considerations as pointing in favour of the judge's decision. They included the following. The claimant herself wanted to rely on and challenge the evidence of some of the defendant's witnesses. Without oral evidence from the defendant's witnesses, the court would have been in difficulty in fairly determining the claim. The claimant's own conduct in these proceedings has generated huge and disproportionate costs for the defendant and has already taken up an undue amount of court resources. If the officers were allowed to give evidence, the merits of the claim were not strong. Adverse findings against the defendant or individual witnesses would almost inevitably lead to further litigation, in particular in the form of contested disciplinary proceedings. And although the trial was adjourned, other court users were able in practice to benefit from the court time made available, so that the time was not wasted.
36. A different point made by Mr Payne was that the claimant's claim for race discrimination should not have been proceeding in the High Court at all, since such claims can be brought only in a county court: see section 114 of the Equality Act 2010, and Isaacs v Commissioner of Police for the Metropolis (judgment of Dingemans J in the Queen's Bench Division, 23 October 2013). This point was not advanced below and was indeed taken for the first time in a written submission only the day before the hearing of the appeal. Mr Payne nonetheless submitted that we should take this matter into account if we came to exercise a fresh discretion, and that this, rather than the delay in the lodging of witness statements, should be seen as the operative cause of the adjournment of the trial. In her reply submissions the claimant took issue with this line of argument, submitting that the defendant had forfeited any right to dispute the jurisdiction of the High Court to hear her race discrimination claim.
37. In his further written submissions following the judgment in Mitchell, Mr Payne did not retreat, at least in terms, from the way he had put the case previously. He argued that the judge's approach was consistent with that laid down in Mitchell; that whilst the judge recognised that the two criteria expressly referred to in CPR 3.9 were "weighty" considerations, he was entitled to consider a wide range of other factors; and that the judge's exercise of discretion could not be characterised as plainly wrong. If this court nevertheless took the view that the judge fell into error, he invited us either to remit the case for reconsideration by a judge at first instance in the light of the guidance in Mitchell, or to exercise the discretion ourselves in the light of that guidance and on the basis that the grant of relief from sanction would not have been the operative cause of the adjournment of the trial (because of his point on the jurisdiction of the High Court in relation to the race discrimination claim) and would not now result in the need for a further adjournment.

Discussion of the issue of relief from sanction

38. The judgment in Mitchell reiterated (at para 52) that this court will not lightly interfere with a case management decision. It quoted the observation of Lewison LJ in Mannion v Gray [2012] EWCA Civ 1667, para 18, that "it is vital for the Court of Appeal to uphold robust fair case management decisions by first instance judges". Equally, however, if the message sent out by Mitchell is not to be undermined, it is vital that decisions under CPR 3.9 which fail to follow the robust approach laid down in that case should not be allowed to stand. Failure to follow that approach constitutes an error of principle entitling an appeal court to interfere with the discretionary decision of the first instance judge. It is likely also to lead to a decision that is plainly wrong, justifying intervention on that basis too. We do not share Mr Payne's concern about this leading to an increase in appeals and thereby undermining the efficiency benefits of the Jackson reforms. As is stated at para 48 of the Mitchell judgment, "once it is well understood that the courts will adopt a firm line on enforcement, litigation will be conducted in a more disciplined way and there should be fewer applications under CPR 3.9. In other words, once the new culture becomes accepted, there should be less satellite litigation, not more".
39. We have already acknowledged that in the present case Judge Birtles did not have the benefit of the guidance in Mitchell. In the light of that guidance, however, we have no doubt that he erred in principle and reached a decision that was plainly wrong.
40. First, we do not think that the judge had sufficiently in mind that the sanction imposed by Mitting J's order of 26 February 2013, that the defendant might not rely at trial on the evidence of witnesses whose statements had not been served by the specified date, was itself a proportionate sanction which complied with the overriding objective. It had to be taken to be such in the absence of an appeal against the order or an exceptional application to vary or revoke it (see Mitchell para 44); but in any event the factual history set out above serves amply to confirm that the sanction was correctly imposed. Thus, as was observed at para 45 of the judgment in Mitchell, "the starting point should be that the sanction has been properly imposed and complies with the overriding objective".
41. Secondly, although the judge purported to proceed on the basis that a "much stronger and less tolerant" approach was required under the new CPR 3.9 towards failures to comply with time limits, it is evident that he did not approach the exercise with the focus or degree of toughness called for by the guidance in Mitchell. He went through the old checklist of factors in the superseded version of CPR 3.9 before coming to the two considerations specifically mentioned in the new CPR 3.9 (the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with rules, practice directions and court orders) and then returning to consider further "all the circumstances of the case". He did not appreciate that the two considerations specifically mentioned in the new rule are the most important considerations and should be given greater weight than other factors (see Mitchell paras 36-37 and 49). Nor did he appreciate how much less tolerant an approach towards non-compliance with rules, practice directions and orders is required by the new rule.
42. In the result, he granted relief from sanction in circumstances which in our view could not justify it on any proper application of CPR 3.9. In relation to the two witness statements that were posted on 12 March 2013, just before the deadline for service imposed by Mitting J, but that arrived after the deadline, we accept that the non-compliance, taken by itself, might be characterised as trivial (though the position concerning those two statements is one to which we will return). As regards the remaining six witness statements, however, the non-compliance was on any view serious: four of the statements were served in mid-May, over two months after the deadline, and the remaining two were served in early June, only a few days before the trial. The two applications for relief from sanction, on 15 May and 5 June respectively, were equally late. They were so late that they had to be heard on the first day of the trial, making it very likely that the trial would have to be adjourned if the applications were granted; and in the event an adjournment was ordered as a result of the grant of relief. Even if on this occasion, as Mr Payne told us, it was possible to fill the vacated trial slot with other business, the adjournment of a lengthy trial and the need to relist it for another date is detrimental to the efficient conduct of litigation.
43. The explanations given in support of the applications for relief (paras 19-20 and 23 above) did not get near to providing a good reason for non-compliance. On the contrary, in the light of the previous history they rang very hollow indeed. As long ago as March 2012 the defendant had identified that he was likely to call eight witnesses and had invited the court to make a direction for exchange of witness statements in May 2012 (see para 12 above), all of which makes the subsequent delays very difficult to understand. The timetable then set by Lang J on 19 November 2012 (para 13 above) was fixed after the defendant's solicitor had been consulted (see para 19). The excuses that the solicitor subsequently proffered to Mitting J for failing to meet the date fixed by Lang J (para 16 above) – other professional commitments, holiday season, bad weather, operational commitments of the witnesses – were such that Mitting J's decision to extend the time for service of witness statements could be considered generous. But in granting the extension, Mitting J made clear by the terms of his order that this was the defendant's final opportunity. The failure to meet the final deadline was not the result of any unforeseeable event. It was due to incompetence, as Judge Birtles found, and was simply inexcusable.
44. In reaching his decision, Judge Birtles placed particular weight on the potential effect on the careers and reputations of individuals and the police force if the officers concerned were unable to give evidence, and on the public interest in scrutinising the actions of police officers in the light of all of the evidence from both sides. In our judgment, however, considerations of that kind have only a limited role to play in the context of relief from sanction. They may be relevant to the question of how much time should be allowed for service of witness statements in the first place, and even to the question of what sanction should be imposed for failure to meet the deadline; but once the court has determined both the deadline and the sanction applicable for failure to comply, we do not think that such considerations can properly carry much weight in determining whether to grant relief from the sanction for non-compliance.
45. We have taken into account the various other matters urged on us by Mr Payne in support of the judge's decision, but again we do not consider that any of them could properly carry much weight in the circumstances.
46. Accordingly, we are satisfied that the judge's exercise of discretion under CPR 3.9 was flawed. We are also satisfied that we can and should decide the applications under CPR 3.9 for ourselves, exercising the discretion afresh, rather than remitting the case to a first instance judge for that purpose.
47. For the reasons already given in considering Judge Birtles' decision, we have no doubt that relief from sanction should be refused in relation to the four witness statements served in May and the two further witness statements served in June. Application of the guidance in Mitchell points clearly to that result.
48. The position concerning the two witness statements that were served only just out of time is less clear-cut. The judgment in Mitchell states, at para 40:

"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.

49. Moreover, even in relation to trivial non-compliance, the judgment in Mitchell states that "the court will usually grant relief provided that an application is made promptly" (emphasis added). The application in this case was not made promptly; far from it. Nothing was done about the non-compliance for over two months, until the application for relief dated 15 May, which covered the two statements served in March as well as the four additional statements then sought to be relied on. By that time the trial, fixed for 10 June, was imminent. Unless and until relief from sanction was obtained, the claimant could not be expected to prepare to deal with the evidence of witnesses whose statements had been served out of time. She was entitled to proceed on the basis that, as provided in Mitting J's order, the defendant could not rely on the evidence of any witness whose statement had not been served by the deadline. It is, moreover, of considerable significance that she had protested loudly that the statements were late. There can be no question of the defendant having been lulled into a false sense of security; and it was immediately obvious that an application for relief against sanctions would have to be made. This makes the delay all the more inexcusable.
50. We have considered the statements of the two witnesses concerned. Their evidence covers a substantial amount of ground relating to the claimant's original arrest and her detention in the police van and thereafter at the police station. It is true that the claimant would have had to cover that ground in any event for the preparation of her own case at the trial, and that, as found by the judge, she had been aware of the essential parts of the witnesses' evidence for some time because of the disclosure of earlier statements as well as the officers' notebooks. It is possible that if those two police witnesses alone had been allowed to give evidence, rather than the eight police witnesses allowed by the judge's ruling, there would have been time for the claimant to prepare her cross-examination of them without the need for the trial as a whole to be adjourned to a later date. There was, however, a real risk that the trial date would still have been lost. This serves to underline that, if relief from sanction was to be sought, it should have been sought promptly.
51. Taking everything into account, and placing particular weight on the failure to make a prompt application for relief from sanction, we have come to the conclusion that the application for relief should be refused even in relation to the evidence of those two witnesses.
52. It follows that in our judgment the defendant's two applications for relief from sanction should be refused in their entirety.
53. In reaching our conclusion on that issue we have not placed weight on Mr Payne's late argument concerning the appropriate forum for determination of the race discrimination claim. That issue was not raised below and does not arise for decision on the appeal. It will have to be argued out and decided at first instance following remittal of the case to the High Court. It cannot in our view affect the outcome of the appeal in relation to relief from sanction.

The claimant's application for strike-out or summary judgment

54. Judge Birtles had before him an application by the claimant to strike out the defence or to enter summary judgment on her claim. It followed inevitably from his grant of relief from sanction, so as to allow the defendant to call the eight witnesses whose statements had been served late, that the claimant's application fell to be dismissed by him. The claimant's appeal to this court encompasses an appeal against that decision and needs to be considered in the light of our decision that relief from sanction should be refused, so that the defendant may not now rely on the evidence of any of the eight witnesses.
55. We are satisfied that this aspect of the claimant's appeal must be dismissed notwithstanding our decision in respect of relief from sanction. In our judgment, there was and is no substance in her application for a strike-out or summary judgment. Her claim depends in part on her own credibility, which the defendant is entitled to challenge at trial; and there is documentary material on the basis of which the defendant can properly mount such a challenge even though he is unable to call any witnesses on his own behalf. In any event her allegations of race discrimination, racial targeting and the like are denied by the defendant, who has a real prospect of successfully defending the case at trial even without witness evidence of his own. The refusal of the defendant's application for relief from sanction will make the claimant's task that much easier, but she will still need to prove her case; and it will be for the trial judge to determine whether she has done so.

Conclusion

56. For the reasons given, we allow the claimant's appeal against Judge Birtle's decision under CPR 3.9. We set aside his decision and substitute a decision refusing the applications for relief from sanction. We dismiss the claimant's appeal against the judge's dismissal of her application for a strike-out or summary judgment.