In November last year the Court of Appeal upheld a decision at first instance that failure to comply with a court timetable, unless it was trivial and with good reason for the breach, was inexcusable and would result in the imposition of sanctions, regardless of the lack of proportionality between the consequence of the breach and the draconian nature of the sanction (Mitchell v News Group Newspapers Ltd).
A number of subsequent decisions and rule changes have chipped away at this decision (see Law-Nows of “Mitchell madness recedes” and “Court acts to reduce extension of time applications following “Plebgate”) in an endeavour to rescue the court from a deluge of applications to punish opponents for failure to meet court timetables.
Last week, Mr N Strauss Q.C., sitting as a deputy judge in the High Court, struck another telling blow against the rationale underlying Mitchell deciding that, even though the breach was not trivial and there was no good reason for it, the consequence of the breach was negligible, the opposing party suffered no prejudice and the interests of justice would not be served by applying the sanction so no sanction would be ordered. This case reinstates the principles that prejudice should result from a breach in order for sanctions to follow and whatever decision is made it should not impact on the interests of justice.
In Scotbert Gordon v Osra Fraser, the defendant (F), who was being sued by the claimant (G), her 93-year-old father, applied on the first day of trial to call a witness, despite having failed to serve a witness statement or witness summary in time.
G alleged that F had improperly withdrawn money, of which he was the beneficial owner from a bank account in their joint names. F’s defence was that G had withdrawn the money himself to finance his girlfriends and gambling. The manager of the relevant branch of the bank said that G had attended the bank on his own and made the withdrawals. F intended to call the bank manager as a witness but was unable to obtain a witness statement from the bank manager.
Three months after the expiry of the deadline for exchanging witness statements, F served a witness summary relating to the bank manager’s evidence. Under CPR r.32.10, witnesses summaries are to be served within the same time specified by the court for witness statements, failing which the witness may not be called unless the court gives permission. F therefore applied to call the bank manager as a witness and sought relief from the sanction that the bank manager’s evidence should be excluded.
The court allowed the application, even though it held that the breach of the rules was neither trivial nor covered by a good reason. In doing so, the court considered the principles in Mitchell, and whether they should be robustly applied. The court explained that the principles in Mitchellcontained a strict approach to default and that, ordinarily,Mitchell would not support relief from sanctions in this case.
However, the court had to determine whether it should try the case without the bank manager’s evidence so as to further the objective of promoting rigorous compliance with the court’s rules. In this case, to have done so would have deprived the court of the only direct independent evidence on the dispute and there would have been a risk of reaching an incorrect conclusion that F was a thief.
The court explained that it was relevant that the basic aim of a trial was to correctly decide a party’s rights, and the exclusion of relevant evidence risked imperilling the integrity of the judicial process. In this case, the default had not caused prejudice to anyone, was neither proportionate nor justifiable, and gave rise to a serious risk of injustice. In addition, the refusal of relief would have likely led to the adjournment of the case, to allow for the case to be transferred to another judge who would not be informed of the excluded evidence. This would have resulted in unnecessary additional expense, delay and a waste of the court’s resources. Relief from sanctions was therefore granted.
This decision will be welcomed by parties and practitioners seeking further clarity on the courts’ approach to applications for relief from sanctions. In particular, it provides further encouragement to litigants to resume the practice of cooperating with reasonable requests, and not to use the Mitchell case as a weapon to seek tactical advantage over their opponents. Mitchell had encouraged parties to be uncooperative and unnecessarily aggressive. It is hoped that this case will go some way to redress the balance. Practitioners and parties are also keenly awaiting the Court of Appeal’s judgment in three cases concerning the application of Mitchell, which should hopefully clarify these issues yet further.
Click here to read the judgment in Scotbert Gordon v Osra Fraser (No.1) (2014)