Chiu & Ors v Waitrose Ltd & Ors

Under CPR 3.9(1), the court may grant relief from sanctions imposed by a consent order. However, the parties’ agreement is a highly important factor, and the court should be slow to interfere except in unusual circumstances. Relief may nevertheless be appropriate where the order was unclearly framed, the deadline unintentionally fell on a bank holiday, the default was promptly remedied, the mistake was genuine, the trial date remained achievable and the prejudice was minimal. The court must weigh those circumstances against the finality and certainty which the consent order was intended to provide.

Wates applied under CPR 3.9(1) for relief from sanctions after failing to exchange witness statements by the deadline in a consent order. The order provided that Wates’ defence and related claims would be struck out unless witness statements were exchanged within 14 days. The period expired on Good Friday, 22 April 2011. Wates served the statements on the next working day, 26 April 2011, having mistakenly believed that service on that day was permitted.

The application concerned the significance of the consent order, the effect of the solicitor’s mistake, Wates’ earlier delays, the absence of material prejudice and whether the trial could proceed as planned.

1. The court had power under CPR 3.9(1) to grant relief from the sanction in the consent order. The fact that the order represented an agreement did not remove that jurisdiction, but the court had to place very great weight on the agreement and should be slow, save in unusual circumstances, to depart from it.

2. The circumstances were unusual. The order required exchange, rather than merely filing and serving, and the agreed 14-day period unintentionally expired on Good Friday. The order did not comply with CPR 2.9, whose purpose was to require clear dates and times and avoid mistakes of this kind. Had the order required filing as well as exchange, CPR 2.8(5) might have applied.

3. Considering CPR 3.9(1)(a) to (i), the interests of justice were neutral overall. The application was prompt, the failure was not deliberate, and there was a good explanation based on the understandable mistake concerning the bank holiday. The previous delays, including the failure to serve witness statements before the consent order, were serious but mitigated by the solicitor’s illness. The mistake was made by the legal representative rather than Wates, although ordinarily a representative’s conduct is treated as that of the party.

4. The trial date could still be met, and the effect of the default before the next working day was minimal. Refusing relief would prevent Wates from defending substantial claims on their merits and from pursuing its contingent claims. On balance, the factors under CPR 3.9(1) strongly favoured relief.

5. Relief was granted. The witness statements served on 26 April 2011 were treated as compliant with the consent order. The parties were invited to make submissions on costs and ancillary orders.