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CA returns to the Mitchell fray with support for first instance judges – and a warning for them too


Warning: judges should not see relief applications as a chance to display their musculature

The Court of Appeal has returned to the fall-out from the Mitchell ruling, emphasising that it will support “robust and fair” case management decisions made by first instance judges whether they grant relief or not.

But it also warned them against seeing relief from sanctions applications as a chance to display their “judicial musculature”.

Chartwell Estate Agents Ltd v Fergies Properties SA & Anor [2014] EWCA Civ 506 [2] concerns a dispute over an estate agent’s commission, and the failure of both parties to serve witness statements within the time specified by a prior court order, the sanction for which under the CPR is that they could not call the witnesses to give oral evidence without court permission.

The claimant argued that it could not complete its witness statements in the absence of proper disclosure that the defendants contested the need for. Both sides missed the date to serve the statements.

At first instance, Mr Justice Globe ruled that the claimant’s non-compliance was not trivial and was not explained by a good reason, as per Mitchell. However, the default was on both sides.

Deciding that both sides could exchange witness statements almost immediately without prejudicing the trial date, and that there were no significant costs implications, Globe J said a refusal to grant relief would effectively end the action, a consequence he considered “too severe” and unjust in the circumstances.

The Court of Appeal – with Lord Justice Davis, one of the five designated ‘Jackson judges’, giving the ruling – said the fact that refusal to grant relief would in practice mean the end of a claim or defence will “by no means of itself necessarily warrant the grant of relief from sanction”. However, Globe J’s decision to grant relief in all the circumstances here was justified.

“It must not be overlooked that the Court of Appeal in Mitchell did not say that the two factors specified in CPR 3.9 will always prevail, as a matter of weight, over any other circumstances in a case where the default is not trivial and where there is no good justification.

“It is true that it later stated that the expectation is that the two factors mentioned in CPR 3.9 will ‘usually’ trump other circumstances. But it did not say that they always will. That, with respect, must be right. It must be right just because CPR 3.9 has required that all the circumstances are to be taken into account and has required that the application be dealt with justly.”

Davis LJ also highlighted the point emphasised in Mitchell that appellate courts will not lightly interfere with a case management decision. “Robust and fair case management decisions by first instance judges are to be supported… The appellate courts will not interfere if a judge has correctly directed himself, has adopted the correct approach in principle and has taken all the circumstances into account.

“It is also to be emphasised that the courts in considering applications under CPR 3.9 do not have and should not have as their sole objective a display of judicial musculature. The objective under CPR 3.9 is to achieve a just result, having regard not simply to the interests of the parties but also to the wider interests of justice.

“As has been said by the Master of the Rolls (in his 18th lecture), enforcing compliance is not an end in itself. In the well-known words of Lord Justice Bowen: ‘The courts do not exist for the sake of discipline.’ Such sentiments have not been entirely ousted by CPR 3.9, as to be interpreted and applied in the light of Mitchell.

“Accordingly, the enjoinder that the Court of Appeal will not lightly interfere with a case management decision and will support robust and fair case management decisions should not be taken as applying, when CPR 3.9 is in point, only to decisions where relief from sanction has been refused. It does not. It likewise applies to robust and fair case management decisions where relief from sanction has been granted. If parties understand this then at least satellite interlocutory appeals should be avoided and at all events will get no encouragement from the appellate court.”

In a brief comment, Lord Justice Laws said that though he agreed the appeal should be dismissed, he found the case “more finely balanced” than Lord Justices Davis and Sullivan.

“I think it important to emphasise that the result (driven of course by the particular facts) is an unusual one,” he said.

Davis LJ also said that, post Mitchell, the notes to CPR 32.10 in the White Book – which suggest that where a witness statement is served after the specified date, it would be unjust to exclude the party from adducing the evidence at trial “save in very rare circumstances” – may state the position “rather too broadly” and pay insufficient regard to the more rigorous approach now required in the case of non-compliance.