Gall v The Chief Constable of the West Midlands

Relief from a procedural sanction must be determined by considering all relevant circumstances, including the interests of justice and the comparative prejudice to the parties. A decision under CPR Part 3.9 is wrong where the court gives insufficient weight to the importance of admitting relevant factual evidence, fails to consider the applicant’s disadvantage, or relies on matters that do not properly arise. A witness of fact does not ordinarily require permission to give evidence. Any order debarring such evidence must therefore be justified and proportionate.

The claimant appealed from an order of His Honour Judge Cardinal dated 22 August 2006. The order refused an extension of time and maintained a sanction preventing the claimant from relying on evidence from his general practitioner, Dr Yap, unless specified conditions were met.

The claim arose from alleged assault, false imprisonment and malicious prosecution following the claimant’s arrest in May 1999. The central issues were whether the lower court had properly applied CPR Part 3.9 and whether the sanction was justified in circumstances where Dr Yap’s evidence was principally factual.

1. Appeal allowed. The appeal was a review of the lower court’s decision under CPR Part 52.11. The appellate court could intervene because the decision was wrong and unjust.
2. The lower court had approached CPR Part 3.9 inadequately. In considering the interests of the administration of justice, it failed to give proper weight to the fact that the claimant sought to adduce factual evidence for which permission was not ordinarily required. The defendant had not identified the factual issue requiring clarification, and the position concerning any expert evidence was procedurally unresolved.
3. The claimant’s failure was not intentional. He had shown the order to Dr Yap and could not control the contents of the letter which the doctor chose to provide. The lower court was therefore wrong to treat the absence of the required letter as an unexplained default without considering what more the claimant could reasonably have done.
4. The lower court also failed properly to consider whether the trial date could be maintained and gave insufficient attention to the substantially greater prejudice to the claimant if he could not rely on evidence concerning his injuries. The later letters from Dr Yap confirmed that he was willing to give evidence without conditions.
5. The claimant was granted an extension of time to the date of judgment. The order of 9 January 2006 was treated as sufficiently complied with. The defendant was ordered to pay the costs of the appeal and the application below.
6. Obiter observations indicated that any application for permission to call expert evidence should be made in the usual way under CPR Part 35. A future order imposing an equivalent severe sanction on a witness of fact would require careful consideration and full reasons.

• High Court (Queen's Bench Division): appeal from an order of His Honour Judge Cardinal made on 22 August 2006. The appeal was allowed, an extension of time was granted, and the earlier order was treated as complied with.