Summary
With the start of the new Court term following the summer break, we take a look below at recent authorities that have shed light on the Court’s approach to the scope of the relief from sanctions regime under CPR 3.9 and when relief from sanctions and the subsequent Denton test will be required.
Since Denton was handed down a decade ago, the Courts have grappled with the application of CPR 3.9 extensively. While there may be some irony in this as Denton was heard because the Court of Appeal thought the judgment in Mitchell1 had been “misunderstood and is being misapplied by some courts”, recent authorities have been focused on a different issue – namely, whether a late application for expert evidence should be dealt with by way of relief from sanctions or by reference to the overriding objective.
In recent cases, the Court of Appeal has touched on the issue of when CPR 3.9 applies but stopped short of providing the clarification practitioners had been seeking.
The recent case of Yesss (A) Electrical Ltd v. Warren [2024] EWCA Civ 14 held that a claimant did not require relief from sanctions under CPR 3.9 where an application to rely upon expert evidence was made late. This contrasts with the position in relation to late witness evidence of fact, where the rules set out a specific sanction and so require an application for relief from sanctions.
The Courts have previously held that sanctions should be implied for breaches of certain court rules and orders where no express sanction exists, so that parties deemed to be in breach should apply for relief under CPR 3.9 and move through the steps of the Denton test (a reminder of which is set out below).
Despite this, it has not been clear how far this principle extends and when the Court will imply a sanction in circumstances where the CPR, practice directions or relevant court order is silent.
A reminder of the Denton test
The relief from sanctions test at the heart of the Warren case stems from Denton v. TH White Ltd [2014] 1 WLR 3926. In that case, the Court of Appeal held that in assessing whether relief should be granted, three factors should be considered:
- The seriousness and significance of the non-compliance;
- Why the breach occurred; and
- The circumstances of the case so that the application can be dealt with fairly.
For the first stage, judicial discretion will be exercised to ascertain whether the breach is serious or significant. If it is decided at this stage that the breach in question is neither serious nor significant then the consideration ends there.
However, if it is found that the breach is serious or significant, the Court will assess why the breach occurred. Reasons such as simple mistakes or overlooking a deadline are unlikely to be considered good enough reasons for the occurrence of a significant or serious breach.
At the third stage, the Court will look at the circumstances of the case. This will include an assessment of whether the sanction imposed is appropriate, how long it took for an application of relief to be filed and whether other breaches have been committed (although they are not determinative).
The facts in Warren
In the first instance, the claimant, Mr Warren, claimed that he was injured during the course of his employment in 2016 when loading goods into a van. The initial claim value was £140,000 with the defendant denying liability.
A case management conference (CMC) was listed in October 2020 during which four reports providing expert evidence from orthopaedic surgeons were adduced by the claimant with the final of those reports highlighting that expert evidence in relation to pain management would be beneficial.
No permission for such expert evidence had been sought or granted. Some 16 months after the CMC, Mr Warren made an application under CPR 35.4(1) for permission to rely upon a pain management expert on 22 February 2022. On 25 February 2022, the matter was listed for trial due to an administrative error on the part of the Court by not taking into account the dates to avoid that were supplied by Mr Warren.
Mr Warren applied to vacate the trial and the vacation application was heard alongside the application to rely upon the pain management expert. The District Judge in the first instance granted both applications. It was concluded that the late application to rely on the pain management expert was not an application for relief from sanctions, but permission to appeal was granted, noting the mixed stance of the authorities.
The appeal
The defendant’s appeal to the Circuit Judge was dismissed but permission for a second appeal was granted with HHJ Glen noting that there appeared to be conflicting authorities at the High Court level on the point with the decisions in S J Moore (Jeweller) Ltd v. Squibb Group [2018] EWHC 2731 (QB) and Imperial College Healthcare Trust [2020] EWHC 1147 (QB) being cited.
In light of these conflicting authorities, the Court of Appeal granted permission for a second appeal with there being two substantive grounds for appeal:
- The judges had applied the wrong test in reaching their initial decisions and ought to have treated the application as one for relief from sanctions and not for permission for expert evidence; and
- Even if the application is not a matter of relief from sanctions, it should have been refused.
The judgment
In giving the leading judgment, Birss LJ built on his decision in Lufthansa and made clear that confusion had arisen following a shift in the jurisprudence towards compliance with rules and the efficient conduct of litigation. That shift was not based on CPR 3.9 and relief of sanctions, but rather on a developing understanding of the two principles embedded in the overriding objective in CPR 1.1.
Birss LJ held that the first step in these matters is ascertaining whether there is a rule, order or practice direction in place that has been breached. If that is not the case, then the provisions under CPR 3.9 do not apply.
Where a breach is identified, the next step is to ascertain whether a sanction is in existence for such a breach, with there being three scenarios identified by Birss LJ:
- Where express sanctions are provided for in the rules or relevant order;
- Where implied sanctions exist that require the Court’s permission to proceed; and
- Matters where further steps have been taken in relation to a breach (e.g., default judgment).
The Court of Appeal further clarified that just because a rule, practice direction or order sets out that a party requires permission to take a step, it does not mean that the requirement for permission has been imposed as a strict sanction for breach of a particular rule or requirement.
In reaching a decision on whether CPR 3.9 was engaged, Birrs LJ identified two breaches made by the respondent, namely, a breach of the requirement to attend the CMC (of October 2020) with a list of availability for all witnesses and a breach of the CMC order that applications for oral expert evidence be made in the pre-trial checklist.
However, it was held that the application to rely on the pain management expert’s evidence was not an application for relief of sanctions under CPR 3.9 as permission would be required from the Court in any event. The requirement for permission under CPR 35.4 was not a consequence of a breach of any rule or order; rather, it was a requirement imposed to control expert evidence.
The permission would have needed to be granted regardless of whether the application was brought in time.
Ultimately, the Court of Appeal did not overturn the decision on the basis that the allowance of late evidence was within the wide case management powers granted to the judge. A key consideration here was that, due to the administrative error, no trial date was listed at the point the application was made.
Overall key takeaways
The decision in Warren offers welcome clarification on the approach to take in relation to CPR 3.9. However, while the guidance provided is clear, the Court is clearly not relaxing its focus on compliance with procedural rules and the efficient conduct of litigation.
While there is now a clearer framework for procedural steps, the judgment in Warren should not be used as an excuse to delay or fail to take reasonable steps in the conduct of litigation (such as seeking to adduce expert evidence in a timely manner). While it is clear that the need for permission may not be classed as a sanction, the judgment draws out that the Court still wields wide discretion in making such decisions and the conduct of the parties will be a key factor in how the Court applies that discretion.
- Mitchell v. News Group Newspapers Ltd [2013] EWCA Civ 1537
Client Alert 2024-207
