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Laws LJ, Sullivan LJ, Davis LJ
16 April 2014
A judge had been right to grant the claimant relief from sanctions for failing to serve witness statements within the time limit, as refusal would have had the disproportionately severe consequences of ending the claim.
The claimant had during proceedings 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 directions. 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. On appeal the Court held 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 or disproportionate in the circumstances as effectively the claimant would not be given the opportunity to prove their case.The question was whether the sanction could be disapplied.The Court held that CPR, r 32.10 should not be applied of its own, but that CPR, rr 3.1, 3.8 and 3.9 should also be considered.It required a broader reading, or applications to extend service of witness statements before trial would stand on a different footing to those made a trial.
Further, although the non-compliance could not be considered trivial CPR, r 3.9 required the judge to consider all the circumstances of the case, including the fact there would be no significant extra cost if relief were granted so proportionality would be maintained, the trial date would not be lost and the defendants had also failed to serve witness evidence.Whist the revised CPR, r 3.9 and Mitchell v News Group Newspapers Ltd required a more rigorous approach; the judge at first
instance had been entitled to conclude that to not grant relief would have resulted in a disproportionately severe consequence for the claimant.
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The Court commented that the revised CPR, r 3.9 appeared to have promoted satellite litigation which it hoped was only temporary. One way to avoid this was for parties to comply with rules and orders and, where not possible, seek court extensions of time and relief from sanctions as early as possible.Further, the court emphasised the point made in Mitchell that the court will be reluctant to interfere with case management directions to both cases where relief had been granted and refused following fair and robust decisions.