Following on from Adam Dyl’s blog “Relief from sanctions: Wain v Gloucester County Council & others”, the recent case of Chartwell Estate Agents Ltd v (1) Fergies Properties SA (2) Hyam Lehrer sees the Court of Appeal using a common sense approach and granting relief from sanctions, this time for failure to exchange witness evidence in line with directions. 

In this case the claimant had sought disclosure of documents from the defendant which they claimed were necessary for completing witness statements.  The defendant had refused disclosure, and exchange of witness statements did not take place in line with the directions. Some time after the date for exchange, the claimant applied for permission pursuant to CPR r.32.10 to serve statements out of time.  The Judge applied CPR r.3.9 and granted both sides relief from sanctions and an extension of time. The Defendants appealed. 

The Court of Appeal held that the Judge at first instance had been entitled to grant relief on his reasoning that the sanction in CPR r.32.10 (that where a witness statement was not served on time, the witness could not be called to give oral evidence at court unless the court gave permission) was unjust and disproportionate as it would mean the litigation would be effectively at an end as the claimant would not be given the opportunity to prove their case. 

Whilst the Court of Appeal acknowledged that the revised CPR r.3.9 and the decision in Mitchell v News Group Newspapers Ltd meant that now a more rigorous approach was required, under r.3.9 the court had to consider all the circumstances of the case.  Here, it was relevant that:

  • there would be no significant extra cost if relief were granted (so proportionality would be maintained);
  • the trial date would not be lost;
  • the rules had not be deliberately flouted (but there seemed to have been a lack of understanding of the new rules); and
  • the Defendants had also failed to serve witness evidence.

This was despite the fact that the non-compliance could not be considered trivial and there appeared to be no good reason to explain it.

The Court commented that the revised r.3.9 appeared to have promoted satellite litigation which it hoped was only temporary. Perhaps as a way to stop the influx of these cases, the Court was at pains to emphasise it would be reluctant to interfere with fair and robust lower court decisions on both sides: either where relief had been granted or where it had been refused.

The Court pointed out that one way to avoid this was for parties to comply with rules and orders and, where this was not possible, to seek from the court extensions of time and relief from sanctions as early as possible, but it is interesting that here, the claimant neither complied with the directions nor made a timely application for relief.  Could this case see the start of a new approach by the courts – a shift to looking at the effect of not granting relief, even where the breach is not trivial?