Brown & Anor v Fenwick

When considering relief from sanctions, the court must address the relevant factors in Civil Procedure Rules, rule 3.9(1). Even where delay and default are serious, an order which destroys an important part of a claim requires careful assessment of the default, prejudice, the procedural context and the consequences for the applicant. The absence of a trial date, the absence of identified prejudice, and compliance with earlier orders may be material. Where the consequences are exceptionally severe, the Court of Appeal may adjourn a permission application for an inter partes hearing so that the full court can consider whether an important point of principle or practice arises. The adjournment does not determine whether permission or relief should ultimately be granted.

The claimants, husband and wife, pursued personal injury claims arising from a road accident. The wife claimed psychiatric injury after witnessing the husband’s serious injuries. Their claim also included losses connected with their restaurant business, loss of pension and care costs.

A district judge ordered a schedule of loss by 22 December 2000. The claimants failed to provide the material particulars by that date and later sought an extension until 29 June 2001. His Honour Judge Bartfield refused the extension. Owen J reconsidered the matter on appeal and upheld the refusal, applying the factors in rule 3.9(1).

The claimants applied to the Court of Appeal for permission to appeal. The central issue was whether the severity of the consequences, considered with the absence of a trial date and any finding of prejudice, warranted further consideration of the case.

1. Application adjourned. The application for permission to appeal was adjourned for an inter partes hearing before the full court, with the appeal to follow if permission were granted.
2. The Court of Appeal accepted that case-management decisions attract considerable appellate restraint and that this was a second-tier appeal. Permission therefore required an important point of principle or practice, or another compelling reason.
3. The court noted that Civil Procedure Rules, rule 3.9(1), required systematic consideration of the relevant factors when relief from sanctions was sought. That approach had been stated in Bansal v Cheema and Keith v CPM Field Marketing Ltd, and Owen J had reconsidered the matter by reference to those factors.
4. Lady Justice Hale considered the consequences of the order exceptionally serious because it effectively prevented the claimants from advancing important heads of loss. In that context, more substantial default and prejudice might be expected before making an order so destructive of an important part of the claim.
5. The absence of a trial date, the claimants’ previous compliance with orders, and the absence of a specific finding of prejudice to the defendant were potentially material. The court also noted possible implications under Article 6 of the European Convention on Human Rights, without determining them.
6. The court deliberately refrained from deciding whether permission should be granted or whether the order below was proportionate. The full court should determine that issue after hearing the respondent.

• Court of Appeal (Civil Division): The permission application was adjourned for an inter partes hearing, with appeal to follow if permission were granted.
• High Court, Queen’s Bench Division, Leeds District Registry: Owen J dismissed the claimants’ appeal from the case-management order.
• County Court: His Honour Judge Bartfield refused an extension of time and made directions restricting the claimants’ ability to particularise and prove specified losses.