In McTear and another v Engelhard and others the claim was issued on 24 February 2012. In early 2014 the first defendant found a number of new documents. By then the deadline for additional disclosure had already passed, and the witness statements were due six days later, on 21 February 2014.

On 21 February 2014, the claimants served their witness statements before the 4pm deadline. The defendants' served theirs by hand on the claimants' solicitors at 4.50 pm, including a 12-page statement from the first defendant exhibiting 700 pages of documents, including all or most of the new documents. The documents had not, at that stage, been formally disclosed.

This was followed by three applications by the defendants, for orders:

  • Pursuant to CPR 3.1(2)(a) extending time by one hour for the service of their witness statements, or relief from sanctions under CPR 32.10, pursuant to CPR 3.9
  • Extending time for service of their further disclosure list
  • Permitting them to serve a re-amended defence

The three applications, together with a strike out application issued by the claimants, were heard by the judge in 2014, after the Mitchell Court of Appeal decision on relief from sanctions, but before the Denton decision. The judge held that the defendants had not provided any satisfactory explanation as to why they had not disclosed the new documents on time; they had decided to follow their own rules so as to disrupt the trial, which was unacceptable.

Grounds of appeal

The defendants' grounds of appeal included the following:

  • The judge wrongly and unjustly applied Mitchell which denied the defendants a fair trial
  • The judge took into account factors that were not relevant, when deciding the issue of late service
  • The judge was wrong to find that there were no good reasons for the delay of 50 minutes in serving the witness statements

Witness evidence

The central issue was whether the judge had properly excluded the defendants' witnesses from giving evidence. The documents that had been disclosed late were of limited relevance. The delay was therefore caused by the decision to exhibit them to the first defendant's statement. The judge had ignored the most important factor, which was whether it was proportionate and just to exclude the defendants from giving that evidence.

The new documents

Vos LJ considered the second application concerning permission to rely on the new documents (CPR 31.21). As he noted, by the time of the hearing, it was not that the defendants had not disclosed them; they had served a formal list.

The question for the court, therefore, was "was the judge right to treat the application in relation to the new documents as purely one for relief from sanctions?". In Vos LJ's view, he was not. In fact, the question was broader: "in all the circumstances, were the defendants to be permitted to rely on the documents at the forthcoming trial?"

Points to Note

The timing of this application at first instance may have been significant; it was heard after the Court of Appeal's decision in Mitchell, but before DentonMitchell can be seen as the "high water mark" of a zero tolerance approach to breaches of rules and court orders. Denton may have tempered that approach. In McTear the Judge's decision to combine the witness statements application with the disclosure application was not in line with Denton; courts should not take into account other breaches of rules or orders as part of their consideration of the first stage of the three-stage test, or the grant of relief from sanctions.

  • If a party discovers new documents, it ought, immediately after they are found, to notify the other party's solicitors, in accordance with the continuing duty of disclosure. A sensible approach would be to send copies to the other party's solicitors immediately, with an assurance that a list will be provided as soon as possible
  • Post-Denton, the courts will reserve special criticism for parties that engage in uncooperative and/or aggressive correspondence with each other, over the course of a dispute
  • Denton reconfirmed: it is wholly inappropriate for litigants, or their lawyers, to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage. An application for relief from sanctions does not exist in a vacuum.