Court of Appeal takes first opportunity to hammer home lessons of Mitchell

Richards: much less tolerant approach towards non-compliance

The Court of Appeal has rigorously applied the Mitchell guidance for the first time, overturning a decision to grant relief from sanctions for non-compliance with an order requiring service of witness statements by a specified date.

Though the lower court had granted relief because of the potential impact on the reputation of several individuals, the appeal court said such considerations should not carry much weight once the sanction has been imposed.

Durrant v Avon & Somerset Constabulary [2013] EWCA Civ 1624 involved a litigant in person bringing multiple claims over her arrest by the police, and a final order that the defendant file and serve witness statements by 12 March 2013, with the sanction that it would not be able to rely on any evidence served after then.

The defendant served two witness statements on 13 March, a further four in mid-May, shortly after applying for relief from sanctions. Shortly before trial in June it made a further application for relief from sanction so as to allow two more officers to be called.

Having used the nine factors in the old rule 3.9 as a starting point, HHJ Birtles went on to consider the new 3.9 before deciding that he should grant relief given the potential effect on the careers and reputations of individuals and the police force if the officers concerned were unable to give evidence, and on the public interest in scrutinising the actions of police officers in the light of all of the evidence from both sides.

The Court of Appeal, led by the deputy head of civil justice Lord Richards, sitting with Lewison LJ and Mr Justice Coleridge, said the decision was “plainly wrong” in the light of Mitchell – which, it noted, came after the judge’s ruling.

The court said HHJ Birtles should have started by bearing in mind that the sanction was “a proportionate sanction which complied with the overriding objective” and found that he did not approach the new rule 3.9 in a sufficiently tough way.

It said he did not give greater weight to the two considerations specifically mentioned in the new rule – the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with rules, practice directions and court orders.

“Nor did he appreciate how much less tolerant an approach towards non-compliance with rules, practice directions and orders is required by the new rule,” said Richards LJ.

The court noted how late most of the statements had been served and the applications for relief had been made, ultimately meaning that the applications were heard on the first day of trial and led to an adjournment.

“Even if on this occasion… it was possible to fill the vacated trial slot with other business, the adjournment of a lengthy trial and the need to relist it for another date is detrimental to the efficient conduct of litigation.”

Richard LJ said the considerations that led to HHJ Birtles granting relief have only a “limited role” to play in the context of relief from sanctions.

“They may be relevant to the question of how much time should be allowed for service of witness statements in the first place, and even to the question of what sanction should be imposed for failure to meet the deadline; but once the court has determined both the deadline and the sanction applicable for failure to comply, we do not think that such considerations can properly carry much weight in determining whether to grant relief from the sanction for non-compliance”.

In light of the history of the case, and of the failure to make a prompt application for relief, the court also overturned the relief granted in relation to the two statements served the day after the deadline, a failure that might otherwise have been deemed trivial.


Leave a Comment

By clicking Submit you consent to Legal Futures storing your personal data and confirm you have read our Privacy Policy and section 5 of our Terms & Conditions which deals with user-generated content. All comments will be moderated before posting.

Required fields are marked *
Email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.


10 June 2021

The growing risk of ESG litigation

The rapid rise of environmental, social and governance (ESG) issues, and the intense focus of legislators, regulators and investors on sustainability, has led many businesses to look closely at their ESG credentials.

Read More