ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE GLOBE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE DAVIS
| CHARTWELL ESTATE AGENTS LIMITED
|- and -
|(1) FERGIES PROPERTIES SA
(2) HYAM LEHRER
MR MICHELE DE GREGORIO (instructed by SGH Martineau LLP) for the Respondent.
Hearing date: 3 April 2014
Crown Copyright ©
Lord Justice Davis:
The course of the proceedings
"Each party shall serve on the/every other party the statements of all witnesses of fact and any notice relating to evidence on whom it intends to rely.
There shall be simultaneous exchange of such statements by no later than 4 p.m. on 22 November 2013."
This was therefore the first occasion on which the court had given a direction as to service of witness statements. We were told that that particular time limit for exchange had in fact been agreed. In addition a trial window of March, April or May 2014, with a time estimate of four days, was indicated by the order. Subsequently, the case was fixed for trial in a trial window commencing 29 April 2014.
"….applying the Mitchell principles we don't see that there are any grounds for permission to be given. That is the position as we see it, and we should be grateful if you would please confirm what your intentions are."
"We would have been ready to exchange witness statements on 22 November 2013 in accordance with the Directions set by the court, however, we did not finalise our statements at the time because you stated that you would not be in a position to exchange witness evidence by that date."
The letter made further reference to CPR 32.10 and CPR 3.9, and said that it must be a matter for the court to decide. The letter concluded in this way:
"We shall finalise our client's witness evidence and, subject to any order the court may make, will be in a position to exchange statements by the end of this week. We await service of your application together with any supporting evidence."
"Our position on this is that it is a matter for the court to decide."
The legal framework
"If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission."
CPR 3.1(2)(a) provides:
"Except where these Rules provide otherwise, the court may -
(a) extend … the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)".
CPR 3.8(1) and (3) state:
"(1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction."
(Rule 3.9 sets out the circumstances which the court will consider on an application to grant relief from a sanction.)
"(3) Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time, and
(b) specifies the consequences of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties".
CPR 3.9(1), as substituted by the Civil Procedure (Amendment) Rules 2013, states:
"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 overriding objective provisions of the Civil Procedure Rules (themselves revised by the Civil Procedure (Amendment) Rules 2013) are too familiar to require repetition here.
"On an application for relief from a sanction, therefore, the starting point should be that the sanction has been properly imposed and complies with the overriding objective."
The question thus is not whether the sanction prescribed by CPR 32.10 is of itself disproportionate or unjust but whether the sanction should be disapplied in the particular case.
"However, where before trial a party requests the court to exercise its powers under r.3.1(2)(a) to extend the time for serving their witness statements it could be argued that r.3.9 does not apply because at that stage the sanction imposed by r.32.10 has not had 'effect' within the meaning of r.3.8."
"… the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner."
Laxity in compliance by the parties and laxity in enforcement by the courts will accordingly not be acceptable. A tougher and more robust approach is called for.
i) It is necessary to consider whether the nature of the non-compliance is such that it can be regarded as trivial.
ii) If the non-compliance is not trivial, it is necessary to consider whether there is a good reason explaining the non-compliance.
iii) The promptness (or otherwise) of an application to court for an extension of time and relief from sanction for these purposes will be material.
iv) If the non-compliance is not trivial and if there is no good reason for the non-compliance then the "expectation" is that the sanction will apply. The court has power to grant relief but, if the non-compliance is not trivial and if there is no good reason for it, the expectation is that the factors mentioned in (a) and (b) of the rule will "usually trump other circumstances".
See, in particular, paragraphs 40-41 and 58 of the judgment of the court. It is also stated (at paragraph 46):
"The new more robust approach that we have outlined above will mean that from now on relief from sanctions should be granted more sparingly than previously."
"39. The overriding objective requires me to deal with the case justly and at proportionate cost. The trial date remains. Both parties can exchange witness statements almost immediately, certainly within 7 days. If a relief from sanction is required, a refusal to give relief on the basis of a robust application of the new CPR 3.9 would effectively mean the end of the action. In my judgment, that would be too severe a consequence and would be an unjust result when considered against the background history, as described in this judgment; default occurring on both sides; the fact that the trial date can be maintained; and there are no significant additional cost implications if, as I intend should be the case, the cost budgets are not increased. In this regard, any additional expenditure on each side is a direct consequence of their own default. The proportionate cost of the whole action is therefore not affected by a relief from sanction."
Lord Justice Sullivan:
Lord Justice Laws: