Witness statements, relief from sanctions and the critical importance of adhering to court directions

 

Court House

 

The recent appeal decision in Reece Gladwin v. Adrian Bogescu [2017] EWHC 1287 (QB) reaffirms the critical importance that parties comply with Civil Procedure Rules (CPR), practice directions and court orders.  The decision of Mr. Justice Turner held that the trial judge should not have adjourned the trial when the claimant’s solicitors failed to serve witness statements on time in accordance with case management directions; instead he should have struck the claim out.

 

Background

In November 2014, the defendant, in his car, collided with the claimant's motorcycle; liability was admitted but quantum was in dispute.  In April 2016, the claimant's solicitors commenced proceedings in court; directions were given for parties to file their witness statements by 4pm on 3 November 2016.  The judge provided that, failure for parties to adhere to these directions would be:

Oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late, except with permission from the court.

The claimant obtained consent from the defendant for a two week extension for parties to adhere to the order, i.e. by 4pm on 17 November 2016.  However, the claimant's solicitors failed to serve the claimant's witness statement until 5 January 2017, without making an application for relief from sanction.

The claimant's solicitors applied for relief from sanctions and permission for the claimant to give oral evidence at the trial less than a week before the trial was due to begin.  Consequently, the application for relief under CPR 3.9 was heard on what ought to have been the first day of the trial.

 

Relief from sanctions and the three limb ‘Denton test’

The criteria applied in considering the application for relief from sanctions were the three limbs established in Denton v TH White Ltd; Decadent Vapours Ltd v Bevan; Utilise TDS Ltd v Davies[2014] All ER (D) 53 (Jul) (“Denton”), being:

  1. Identify and assess  whether or not the Claimant’s failure was serious and significant;
  2. Consider why the breach occurred; and
  3. Evaluate all the circumstances in the case.

Considering the first two limbs of the Denton test, the judge found the claimant's solicitors' breach to be significant, and that there was no good reason for it.  The judge described the delay between the time the default came to the express attention of the claimant's solicitors and the date of the application for relief to be 'quite astonishing'.  The claimant’s solicitors accepted these first two limbs.

Considering the third limb, the judge concluded that, if he were to refuse the claimant's application, the result would be that the defendant would suffer greater prejudice than the claimant because, although the claimant would be barred from giving oral evidence, he would potentially remain entitled, as of right, to rely on his witness statement and, thereby, evade cross-examination by the defendant’s solicitors.  This contradicted with both parties positions, who asserted that refusing the relief from sanction, would lead to the foreseeable failure of the Claimant’s case.

The judge adjourned the case and the defendant appealed against that decision.   The issue, therefore, was whether the judge had been correct in granting relief from sanctions to the claimant.

 

Appeal decision

Mr. Justice Turner concluded that the claimant should not have been granted relief and the adjournment should have been refused.  Mr. Justice Turner applied the court’s overriding objective and found that in the circumstances (as it was a relatively modest claim and the additional expenses of an adjournment would be significant), the arguments in favour of granting an adjournment were weak and therefore should have been refused.

Mr. Justice Turner found that the judge should have considered his powers of striking out the claim on the first day of the trial.  Although he was sympathetic to the fact that it was due to the ‘carelessness’ of the claimant’s solicitor that led to the breach of the court order, Mr. Justice Turner was unwilling to act leniently in his approach because to do so ‘undermines the court’s ability to enforce process requirements…this imposes a burden on the administration of justice and on the opponent.  Tolerance of lawyer’s default encourages sloppy practice and satellite litigation, thereby making litigation more hazardous and the cost more unpredictable.’  Consequently, he struck out the claim.

 

Implications

The appeal decision in Gladwin v. Bogescu reiterates the importance of adhering to the CPR, practice directions and court orders.  Further, it reaffirms the significance of making an application for relief promptly. 

Ensuring you have legal representation who are meticulous and detailed oriented in their approach and have highly organised, robust and rigorous internal processes in place and, in the rare occasions rules or court orders are not complied with, act promptly to rectify issues is key. 

The Defended Litigation team at Judge & Priestly provides this service to its clients.  If you would like to speak with a member of the team on who we can advise you, please contact Rachel Addai on 020 8290 7356.

Brendan Udokoro, Trainee Solicitor, Defended Litigation team

 

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