Durrant v Chief Constable of Avon and Somerset

The Court of Appeal applied the guidance in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 when considering an application under CPR 3.9 for relief from sanction for failure to serve witness statements by a court-ordered deadline. The court emphasised that the starting point is that a proportionate sanction imposed by a judge for non-compliance should be treated as valid and that the two specific considerations in CPR 3.9 — that litigation be conducted efficiently and at proportionate cost and that compliance with orders be enforced — are of primary importance.

The trial judge erred by failing to give those two considerations the dominant weight required by Mitchell, and by placing excessive weight on the reputational and public interest arguments for allowing late witness evidence. The defendant’s delay was serious and, in the judge’s view and on appeal, in large part the result of incompetence and inexcusable lateness; the applications for relief were not made promptly. On a fresh exercise of discretion the Court of Appeal refused relief from sanction in respect of all late witness statements and set aside the trial judge’s order allowing them.

This was an appeal from a decision of His Honour Judge Birtles (Queen's Bench Division, [2013] EWHC 1984 (QB)) granting relief from sanction under CPR 3.9 so that the defendant (the Chief Constable) could rely on eight witness statements that had been served after the deadline fixed by Mitting J. The claimant is a litigant in person who sued the police for various torts and discrimination arising from her arrest and detention. The defendant had been ordered to serve witness statements by 12 March 2013 and Mitting J’s order expressly provided that the defendant might not rely on any witness evidence other than that of witnesses whose statements had been served by that date.

• Nature of the application: the defendant applied for relief from sanction under CPR 3.9 to permit reliance on witness evidence served after the deadline. The defendant sought to justify late service by reference to practical difficulties in locating or obtaining statements and to the public interest in allowing police officers to defend serious allegations made against them.
• Procedural background: the case had a lengthy interlocutory history including earlier orders by District Judge Daniel, a directions ruling by Lang J (19 November 2012) fixing 21 January 2013 as the date for exchange of witness statements and a final deadline imposed by Mitting J (26 February 2013). The defendant served two statements effectively late in mid-March and subsequently served more statements in mid-May and early June. The trial was fixed for 10 June 2013. The trial judge granted relief from sanction and adjourned the trial; the claimant appealed.
• Issues framed by the court: (i) what approach should be taken to an application for relief from sanction under the new CPR 3.9 in the light of Mitchell; (ii) whether, applying that approach, the trial judge was right to grant relief and allow late witness evidence; and (iii) whether the claimant’s application for strike-out or summary judgment should succeed if relief were refused.

The Court of Appeal held that the judge had erred in principle. It restated that the court should start from the position that a sanction imposed by a first instance judge is proportionate and should be treated as such unless there is good reason otherwise; that the two specific CPR 3.9 considerations carry particular weight; and that a tougher, less tolerant approach to non-compliance is required. The defendant’s failures were serious, the applications were not made promptly and explanations advanced (professional commitments, operational pressures, weather, underestimation) were inadequate in view of the history. The court gave limited weight to arguments based on reputational and public-interest considerations when deciding relief from sanction once the sanction and deadline had been set. Exercising the discretion afresh, the court refused relief in respect of all eight late statements. The court nevertheless dismissed the claimant’s challenge to the judge’s refusal of strike-out or summary judgment, holding that the defendant retained realistic prospects of defending the claim on the documentary record even without calling its own witnesses.

The appeal is allowed in part. The Court of Appeal concluded that Judge Birtles erred in principle in granting relief from sanction under CPR 3.9 because he did not give dominant weight to the two considerations in the new rule and was insufficiently robust in enforcing compliance. On a fresh exercise of the discretion the court refused relief from sanction in respect of all late witness statements and set aside the trial judge’s order permitting those witnesses. The claimant’s appeal against the dismissal of her strike-out/summary judgment application was dismissed because the defendant retained real prospects of defending the claim without its own oral witnesses.

Appeal from His Honour Judge Birtles, Queen's Bench Division, [2013] EWHC 1984 (QB). Earlier interlocutory steps included District Judge Daniel’s order (16 February 2011) and Lang J’s directions of 19 November 2012 setting a timetable including exchange of witness statements by 21 January 2013; Mitting J made an order on 26 February 2013 imposing a final deadline and a sanction for non-compliance. The present appeal applied the Court of Appeal’s guidance in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 to the judge’s CPR 3.9 decision.