Court of Appeal applies Mitchell guidance and finds defendant cannot rely on witness evidence served late

The Court of Appeal has held that a defendant Chief Constable's late service of witness statements meant that it could not rely on any witness evidence in defending the claimant's allegations (which included false imprisonment, assault, malicious prosecution and race discrimination): Durrant v Chief Constable of Avon & Somerset Constabulary [2013] EWCA Civ 1624.

In doing so the Court of Appeal overturned the High Court's decision to grant relief from sanctions and took an early opportunity to apply its own guidance in the Mitchell case. In the court's judgment, the first instance judge did not approach the application with the focus or degree of toughness called for by the guidance in Mitchell. In particular, he did not appreciate that 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) are the most important considerations and should be given greater weight than other factors. Nor did he appreciate how much less tolerant an approach towards non-compliance is required by the new rule.

Significantly, in giving the judgment of the court, Richards LJ (who was also on the panel in the Mitchell appeal) stated: "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." 

As well as reinforcing the court's tough approach to whether there is "good reason" for non-compliance, the decision underlines the need to apply for relief from sanctions promptly, even where a breach may be described as "trivial". Here the court refused to permit the defendant to rely on two witness statements where the deadline was missed by just one day, as well as others for which the delay was more serious, in part due to the defendant's failure to apply promptly for relief. The decision also illustrates how narrow the court's focus will be on an application for relief from sanctions; the starting point will be that the order imposing the deadline and sanction were appropriate when made, in the absence of any appeal or application to vary or revoke that order.

Background

In its November decision in the high-profile Mitchell case, the Court of Appeal confirmed that the Jackson reforms mean a real change to the court’s approach toward compliance with rules and court orders, and that courts are likely to take a firm line in the face of default (see post). The decision established the following key points:

In the present case the defendant failed to comply with a direction for exchange of witness statements by 4 pm on 21 January 2013. On that day, the defendant's solicitor wrote to the claimant (who was acting in person) saying she was struggling to meet the deadline because some of the officers involved in the incident had retired or were unavailable over the Christmas period, and the snow had further delayed matters. She asked the claimant to agree a 21 day extension.

The claimant did not agree to an extension. Instead she made what the court described as a "misconceived" application that the Chief Constable be committed for contempt of court for failing to serve witness evidence. That application was dismissed, but the court made the following order:

"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).

On 12 March, the deadline stated in the order, the defendant's solicitor posted a letter to the claimant enclosing the statements of two officers. The claimant responded by email, saying that the statements had arrived at approximately 1 pm on 13 March and that this was not in accordance with the judge's order. However, the defendant did not apply for relief from sanction until 15 May, by which time the trial was scheduled for 10 June 2013. The defendant served four witness statements in May and another two in June, shortly before trial.

On the first day of the trial, the trial judge (His Honour Judge Birtles) granted relief from sanctions and permitted the evidence, giving particular weight to the potential effect on the careers and reputations of individual officers and the police force if the evidence was not admitted, and the public interest in the court scrutinising the actions of police officers in the light of all of the evidence from both sides. The claimant appealed.

Decision

The Court of Appeal allowed the claimant's appeal and held that the application for relief should be refused. The result is that the defendant will not be permitted to rely on any witness evidence at trial. 

Since there was no appeal against the order imposing the deadline and sanction for breach, or an application to vary or revoke that order, the court had to proceed on the basis that it was a proportionate sanction which complied with the overriding objective (and in any event, on the facts, the court said the sanction was correctly imposed). The judge did not have that point sufficiently in mind. Further, although the judge purported to proceed on the basis the new CPR 3.9 required a "much stronger and less tolerant" approach, he did not approach the exercise with the focus or degree of toughness called for by the guidance in Mitchell. 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. Nor did he appreciate how much less tolerant an approach towards non-compliance is required by the new rule. He therefore granted relief in circumstances which could not justify it on any proper application of CPR 3.9.

Regarding the six witness statements served in May/June, the non-compliance was on any view serious, rather than merely trivial, and the defendant's explanations did not get near to providing a good reason for non-compliance. The excuses that the solicitor gave for failing to meet the original deadline (other professional commitments, holiday season, bad weather, operational commitments of the witnesses) were such that the decision to extend time could be considered "generous". The Court of Appeal said:

"But in granting the extension, the judge had 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."

The Court of Appeal said that the considerations on which Judge Birtles placed particular weight, i.e. the potential effect on the careers and reputations of the police and the public interest in scrutinising their actions in the light of all the evidence, should have only a limited role to play in the context of an application for relief from sanction. Such considerations may be relevant at the earlier stage of considering the appropriate deadline and sanction for a failure to meet it. However, once the court has determined both the deadline and the sanction applicable for failure to comply, such considerations could not properly carry much weight in determining whether to grant relief for non-compliance.

In relation to the two witness statements posted on 12 March 2013, the Court of Appeal accepted that the non-compliance, taken by itself, might be characterised as trivial since the deadline was narrowly missed. It was more significant, however, when seen against the background of the failure to comply with the earlier order and the fact that a sanction for non-compliance had been specified. Further, 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). Here the application was not made promptly. Nothing was done about the non-compliance for over two months, and the delay was all the more inexcusable since the claimant had protested loudly that the statements were late and so there was no question of the defendant being lulled into a false sense of security. The application for relief was therefore refused even in relation to the evidence of those two witnesses.

The Court of Appeal however refused to strike out the defence or enter summary judgment on the claimant's claim.  The claim depended in part on her own credibility, which the defendant was entitled to challenge at trial, including on the basis of documentary material. The claimant would still need to prove her case.