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Durrant v Chief Constable of Avon & Somerset Constabulary, Court of Appeal, 17 December 2013

20 January 2014

Jackson Reforms – Mitchell v Newsgroup Newspapers Ltd – failure to exchange witness statements

The facts
The claimant had been arrested with two friends on suspicion of assaulting a taxi Marshall in Bristol. The claimant was charged under Section 4 of the Public Order Act 1986 with assault but at trial the prosecution offered no evidence and she was acquitted. The claimant complained to the Professional Standards Department of the Force and the Police Complaints Commission. Her criticisms extended to the actions of a total 14 police officers involved in the incident. The Professional Standards Department rejected all complaints made save in relation to a failure to allow the claimant to use the bathroom when needed in respect of which an apology was made and an offer of £200 compensation. The claimant brought a claim for false imprisonment, assault, malicious prosecution, misfeasance in public office, defamation, race discrimination and breach of the European Convention of Human Rights. She acted in person throughout. The parties came under an obligation to exchange witness statements no later than 4 pm on 21 January 2013. The defendant failed to comply with the direction for exchange. The defendant sought an extension of time of 21 days which was refused by the claimant. The claimant made a misconceived application to commit the Chief Constable for contempt for failing to serve the evidence. However at that hearing whilst dismissing the claimant’s contempt of court application the judge ordered that the defendant file and serve witness statements by 4 pm on 12 March 2013 and that the defendant might not rely on any witness evidence other than that of witnesses whose statements had been so served. The evidence was that when the statements were sent the claimant did not receive them until 13 March. The defendant made no application when notified that they had not arrived in time for relief for sanctions.

In May the defendant made an application for relief in respect of witness statements. Subsequently the defendant sent the claimant six witness statements, namely the two statements already served in March and the statements of additional officers. The defendant’s application for relief was adjourned by the Master to the trial judge because he did not have time to hear it in his list. Five days before trial, the defendant made a further application for relief so as to allow two more officers to be called as witnesses. The trial judge on the first morning having heard argument, decided subject to payment of costs, to allow the defendant to adduce the witness statements and allow the claimant’s application for an adjournment. The claimant appealed the judge’s order to the Court of Appeal.

The decision
The judge had not had the benefit of the guidance of the Court of Appeal in Mitchell. In the light of that guidance there was no doubt that he had reached a decision that was plainly wrong. Firstly he had not sufficiently in mind the sanction imposed by the judge that the defendant might not rely at trial on the evidence of witnesses whose statement had not been served by the specified date. That itself was a proportionate sanction which complied with the overriding directive. It had to be taken as such in the absence of an appeal against the order or an exceptional application to vary or revoke it. 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 was evident that he had not approached the exercise with the focus or degree of toughness called for by Mitchell. He went through the old checklist of factors in the superseded version of CPR 3.9 before coming to the new considerations specifically mentioned in the new CPR3.9 namely 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. He did not appreciate that the two considerations specifically mentioned were the most important considerations and needed to be given greater weight than the other factors. Nor did he appreciate how much less tolerant an approach was required by the new rule.

In respect of the two witness statements posted on 12 March, compliance taken by itself might be characterised as trivial. As regards the remaining six witness statements however the non-compliance was on any view serious. Two applications for relief from sanction were equally late. They were so late that they had to be heard on the first day of trial bringing about an adjournment. The adjournment of a lengthy trial and the need to re-list was detrimental to the efficient conduct of litigation. The explanations provided in support of the applications for relief did not get anywhere near to providing a good reason for non-compliance. Those included other professional commitments, the holiday season, bad weather and the operational commitments of the witnesses. However the failure to meet the final deadline was not the result of any unforeseeable event but was due to incompetence and was imply inexcusable.

The judge had placed particular weight on the potential effect on the careers and reputation of the individuals on the police force if the officers concerned were unable to give evidence. Considerations of that kind had only limited a role to play in the context of relief from sanction. They might 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 the sanction should be in respect of a failure to meet the deadline; but once the court had determined the deadline and the sanction applicable, the court did not think that such considerations could carry much weight in determining whether to grant relief. Reconsidering the discretion afresh, there was no doubt that relief from sanction should be refused in relation to the four witness statements served in May and the two further statements served in June. The position in respect of the two just served out of time was less clear cut.

Mitchell had said that the court would usually grant relief in respect of trivial non-compliance provided that an application was made promptly. The application in this case had not been made promptly. Nothing had been done about the non-compliance for over two months. 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 the defendant could not rely on the evidence of any witness whose statement had not been served by that deadline. There was no question of the defendant having been lulled in to a false sense of security. The claimant had protested loudly that the statements were late. This made the delay all the more inexcusable. Relief therefore would be refused even in relation to the evidence of those two witnesses.

Appeal allowed.

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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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