Solicitors who served witness statements two months late cannot call any witnesses at trial after the Court of Appeal upheld the first instance judge’s decision to refuse relief from sanctions.
The ruling has the potential “to increase claims against solicitors and has wider implications for insurers dealing with claims and litigation in the courts more generally”, according to Alex Denslow, the partner at CMS Cameron McKenna who represented the successful respondents in the so-far unreported case of Clearway Drainage Systems v Miles Smith.
The failure to comply with the order resulted in three pre-trial reviews, rather than the single one planned.
According to CMS, this was an unusual case in that the solicitors had “unaccountably not applied for relief much earlier when informed by the other side of the missed deadline and they did not react promptly after the judge’s advice to do so at the first pre-trial review”.
It continued: “Practitioners should take note that it was not the initial failure by the solicitors to serve its client’s witness statements in time that was the critical failing but rather the solicitors’ failure to take action promptly as soon as they became aware of the position.
“The Court of Appeal made very clear that a solicitor’s existing heavy workload would not excuse a lack of promptness. Practitioners need to be mindful that missed deadlines remain a fertile ground for negligence claims.”
The appellant in Clearway argued that the first instance judge had given overriding priority to the factors listed in CPR 3.9(1) and that she should have given more weight both to the fact that the trial could have gone ahead on the original date despite the late submission of witness evidence and to the reality that refusal of relief would in effect mean the end of the case, which, according to the appellant would be an unjust outcome where the claimant itself was blameless.
The Court of Appeal, which included the Master of the Rolls, Sir Terence Etherton, confirmed that Denton remains good law in stating that whereas the two factors listed at CPR 3.9(1)(a) and (b) “may not be of paramount importance… they are of particular importance and should be given particular weight at the third stage when all the circumstances of the case are considered”.
The court concluded that the judge had undertaken a “conscientious and impeccable” analysis of the three stages of the Denton test and that she had been fully entitled to give importance to the appellant’s solicitors’ lack of promptness in applying for relief. A case management decision by the first instance judge would have to be wholly wrong before it would be overturned, the court said.
It also stressed that there would be no return to the practice of some years ago where costs orders were generally considered sufficient penalty for lax compliance with court directions – indeed, consistency in taking a rigorous approach was imperative.
Mr Denslow suggested that the decision meant the lower courts would be less likely to grant relief, which should concern solicitors’ indemnity insurers.
“Where the delay or failure to comply with the court order was, or was arguably, the fault of the solicitor conducting the litigation, they may be exposed to a claim by their client.”