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the Court of Appeal sends out another strong message on the Jackson reforms

18 December 2013

Following on from the case of Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537, the Court of Appeal has just re-visited the Jackson reforms and how they will be interpreted by the court going forward in the case of Durrant v Chief Constable of Avon and Somerset [2013] EWCA Civ 1624.

The Court of Appeal has again stated that the robust approach adopted in Mitchell is the correct approach and that going forward non-compliance will not be tolerated.

The claimant brought a claim against the defendant alleging false imprisonment, assault and breaches of the Human Rights Act. Proceedings were issued and directions given including a direction for witness statements to be served.

The defendants failed to comply with the order for exchange of witness statements on several occasions and eventually served the majority of its witness statements two days after the date given in the court order. Subsequently the defendant tried to serve a further four witness statements out of time and made an application for relief from sanction, asking the court to allow them to rely on those witness statements.

The application was heard by the trial judge who allowed the inclusion of the witness statements and granted relief from sanction. The trial was adjourned as a result of this order.

The claimant appealed to the Court of Appeal against this decision.

The Court of Appeal
The Court of Appeal, in the lead Judgment given by Lord Justice Richards set out the background to this appeal including a detailed review of the Mitchell case. The court held that the trial judge had made a mistake in allowing relief from sanction and allowed the claimant’s appeal.

It is important to note the tone of the Judgment and the re-enforcement of the message given in the Mitchell case. Lord Justice Richards noted the following:

“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”.”

The judgment gets even more damning as the Court of Appeal looked at the reasons given by the defendant for failure to comply with the deadline for exchange of witness statements:

“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 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.”
The Court of Appeal gave short shrift to the defendant’s submission that the court needed to look at the impact of the decision on the defendant saying:

“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.”

The Court of Appeal continues to give an extremely strong steer as to how the Jackson reforms ought to be interpreted. There will be very little tolerance going forward for any breaches of rules, practice directions or orders. Lower courts are also adopting this robust approach.

So the message to parties to litigation is to make sure that when you enter the litigation process you will be able to comply with any deadlines ordered by the court. Certainly the message is that if there is delay then application to the court for relief from sanction after the expiry of the date for completion of that step will probably be unsuccessful.

For more on the court’s message in light of Jackson, please read our blog.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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