Court allows relief from sanctions where  witness statement/summary was not served  on time

The defendant applied on the first day of trial to call a witness, despite having failed to serve a witness statement or witness summary in time. The  application was therefore an application for relief from sanctions pursuant to CPR r3.9, and so the  Mitchell principles applied. Although the judge accepted that the breach was not trivial and that  no good reason for the breach had been established, he did grant relief. His reasons were as  follows:

  1. While not trivial, the breach was probably inadvertent and “not high up on the scale of  seriousness”, and the defendant had otherwise complied with the rules.
  2. This was not a case where the defendant had failed to serve any evidence at all (with the  effect that the case can no longer be tried on its merits). Here, the default related to some but  not all of the defendant’s evidence and “if there is to be a trial, its basic aim will be to decide correctly what the rights of the parties are. The exclusion of relevant evidence puts  that at risk  and so imperils the integrity of the judicial process”. Furthermore, the judge was  aware that the evidence existed and would be affected by that knowledge, even though if it could  not be tested.
  3. The breach of the rules here was apparently the fault of the defendant’s solicitors (who  probably failed to appreciate that CPR r32.9 has the effect of making the time specified for the  exchange of witness statements automatically apply to witness summaries too (witness summaries  being required where a party is unable to obtain a witness statement in time)). Thus, the refusal  of relief might well have led to a negligence claim against the solicitors, involving eventually  significant additional use of the court’s resources.

Although Davis LJ in Chartwell (see Weekly Update  15/14) acknowledged that satellite litigation  might be an inevitable consequence of the new, stricter approach of the courts, that was said to be a reference  to the “limited kind of “satellite litigation” constituted by contested applications for relief  from sanctions” and was not a reference to “more substantial forms of satellite litigation”, such as fresh actions and claims against  solicitors: “Sometimes, these may render the refusal of the application seriously counterproductive  as regards the efficient conduct of litigation and the waste of court’s resources”. The judge  suggested that a better option, where a solicitor is the cause of a breach of the rules, would be  to make a wasted costs order but to let the action proceed.

The judge concluded that “principally because of the sheer undesirability of the court deciding  whether the very serious allegations made in this action were true without hearing readily  available and probably important evidence, which could be heard without disrupting the trial”, he  should grant permission for the defendant to call the relevant witness.

COMMENT: This decision, which contributes to an apparent growing trend amongst first instance judges to seek to somewhat lessen the impact of the Mitchell approach, will also provide some comfort to professional indemnity insurers concerned that the new approach will lead to an increase in claims against solicitors where claims are lost because of a procedural default by a solicitor. The judge recognised that a negligence case against a defaulting solicitor requires courts to decide not only if there has been negligence but also what loss has been caused and this will “in turn depend on what the outcome of the original action would have been, which is sometimes not easy to decide”. He opined that the undesirability of this must have been one of the reasons why the issue of whether a breach was caused by “the party or his legal representatives” was included as one of the matters to be taken into consideration when deciding whether to grant relief from sanctions under the old CPR r3.9 (and which can still be taken into consideration, according to the Mitchell and Chartwell cases).